Woodward v. State

PER CURIAM.

Chemical Bank sued Commercial Indus-

tries breach equipment of an lease

agreement, alleging had failed to monthly payments.

tender Chemical Bank

attempted its to°introduce business records an affidavit the custodian of the prove

records to action, its but the

trial court objection sustained they an they

were inadmissible because had not

been filed with days the court fourteen

before commencement of trial as re-

quired TEX.REV.CIV.STAT.ANN. art. § S737e 5. appeals The court of affirmed judgment. 802. S.W.2d

We refuse application for writ of

error, error, point reversible but out appeals holding court of concern-

ing mandatory compliance with the four- day only applicable

teen rule is to cases in party

which a an introduces affidavit from

the custodian of the records lieu of call- testify. the custodian If the custodi- qualified person or other had been

called to testify concerning records,

Chemical Bank’s business it would objection have been a valid

records had not been filed with the court days prior

fourteen to trial. WOODWARD, Appellant,

Paul Texas, Appellee.

The STATE of

No. 092-82. Texas, Appeals

Court of Criminal

En Banc. 6, 1982.

Oct. March Rehearing En Banc

On Judgment of af-

for life.1 conviction was Appeals in an un- firmed Court granted appellant’s published opinion. We discretionary in petition for review order to correctly the court deter- decide whether did err in mined that the trial court overruling appellant’s suppress motion to what claims evidence obtained illegal in is an search of his automobile and admitting pistol into evidence a seized dur- paramount ing the search. The issue is of importance pistol in that the was shown weapon, pre- is be the murder and there cious little other evidence deceased, girlfriend, killed the his former doorway as of her resi- she stood early Saturday dence in Austin at an morn- hour March. by a are confronted at the threshold We stop was warrantless through driving downtown his automobile County Deputy by a Columbus Colorado o’clock,just under Sheriff. At about five killed, deceased had been two hours since Austin-originated was received an bulletin Columbus, and by the Sheriff’s Office The “BOLO” was presumably elsewhere. 714 driven Corvette SPB for “1979 Silver Booker, Thomas M. Richard Banks and re- W/M 26-28” and by Paul Woodward Austin, appellant. located, questioning “If hold for quested, city app. 2:30 homicide occ. this ref to Earle, Atty., Philip A. Nel- Dist. Ronald stop on Riehs made the Deputy am...” Huttash, son, Jr., Atty., Asst. Dist. Robert report by a Sher- strength of a radioed Austin, Atty., for the State. State’s reading the dispatcher. As she was iff’s dispatcher received a transmis- bulletin LaGrange that peace from a officer sion spotted automobile the described APPELLANT’S PETITION ON OPINION relayed She route to Columbus. there en REVIEW FOR DISCRETIONARY units and to all available this information CLINTON, Judge. proceeding to responded by Deputy Riehs Highway 71 and the deadly assault on a intersection Adjudged guilty of Columbus, is also which found to have been main street participant and court the Corvette Shortly he saw appellant Highway 90. felony, of a convicted previously its license it to confirm pulled behind confinement punishment at assessed pursuant V.T.C.A.Penal alleged capital murder first Initially appellant indicted for Code, 19.02(a)(1), fatally defective in murder, but being § theory he had caused accused; second an does not name com- that it the course of while in of deceased death id., alleged an under in detail offense burglary. count On mitting attempting to commit 22.03(a)(2)(B), which is that the essence of corpus proceeding § to fix appeal a habeas retaliation for deceased in assaulted capital proof of murder we found bail jury grand against Woodward, testifying him before her parte 601 S.W.2d Ex evident. Cоunty for criminal indicted him grand jury Smith (Tex.Cr.App.1980). Thereafter mischief. counts: with two an indictment returned number; actually then The homicide occurred he turned overhead about lights. Appellant pulled off the street into eyewitness- 3:20 a.m. There are known area place a closed of business and killing, persons es to the but least two got out. Riehs told him reason for the Lee, heard related Lana sounds: house- stop said, going you “I'm to take Dohnalik, deceased, mate of Patricia get to the so down Sheriff’s Office we can Luchenbach, neighbor Thomas who lived everything straight.” He appel- allowed Valley reported Drive. across Laurel Both lock lant the Corvette where it was investigating that officers there were parked, telling bring him he would knocking loud noises of successive “right here appellant back out so he could bumping door on the front followed imme- way on his continue if Austin didn’t want diately by gun- sounds two or three like hold Appellant put him...” was shots. Dohnalik was found where she had booking teletype message room and a was doorway carpet- fallen back from the onto Department. sent Austin Police It ing, right landing on her side. Her death requested instructions.2 pronounced by personnel was EMS within Taking custody a citizen into to a twenty spent fifteen to minutes. Three questioning station for on less than shells were from the recovered same room. probable cause to arrest violates the The by anyone, killer was not seen heard §I, Fourth Amendment as Article as well 9 nеigh- nor was an alien to the automobile Rights. Texas Bill of Brown v. borhood seen in the area. Illinois, 590, 2254, 422 95 U.S. S.Ct. 45 homicide, Having set the scene we (1975); 416 Dunaway L.Ed.2d v. New paraphrase will now the facts and circum- York, 99 S.Ct. U.S. by stances relied on the State its brief to (1979); L.Ed.2d Green show “that existed to arrest cause (Tex.Cr.App.1981). S.W.2d 700 14.04, [appellant] under Article V.A.C.C.P.” stopped Deputy appellant reason Riehs without a warrant derived from the tele- Lee, responded who To the first officer must, typed police; BOLO from Austin we months, for several housemate of deceased therefore, ascertain what Austin offi- appellant suspected said that she was the Warden, had. Whiteley cers appellant explained killer. Lee had 560,3 28 L.Ed.2d 306 calling attempt in an been the deceased charges in get drop her to criminal mischief hearing application record of for Tyler, testify was to where the deceased corpus by stipulation writ habeas be- against April cutting her appellant in ruling came the basis for the of the trial keeping diary tires. Deceased had suppress. court on motion to to document the event some evidence personal Aside from their observations and her, acts, thing happened and she feared for investigating officers testified to threatening Appellant her life. had been hearsay given by persons they information related that the interviewed. deceased.4 Lee further Where, however, Woodward, “We have Lanier Jr. in custo- ment of contrаry cause. 2. Paul true, dy an to know turns out to be otherwise ille- at this time. Would like what to do gal challenge by reply, from arrest cannot be insulated with him. Also the Corvette.” In instigating rely telephoned, officer to police officer the decision of the unidentified Austin saying Id., the arrest.” be sent to Columbus fellow officers to make someone would "right away,” couple S.Ct. at cause for of hours.” 1037. The test or the “next an officer on the responded would book warrantless arrest that he Riehs strength request by another officer is in the keep jail Austin officers ar- of a him in until Tarpley the latter. information known to State, rived. (Tex.Cr.App.1978). 565 S.W.2d “Certainly police called to aid officers executing any 4.Neither nor content of “threat” arrest warrants are nature other officers requesting the officer officers was ever indicated. Even who re- that the entitled to assume "diary” req- was said magistrate the trieved the Lee to cata- offered the aid logue merely "glanced judicial noting, independent them over it” "It support an assess- uisite to together “pick-up” deceased and had At a.m. a lived about 4:00 local put out on and the described split up, getting deceased truck teletype At the time a automobile. same appellant a auto certain Corvette but there Department requested Tyler Police property was “trouble” over division. they if appellant check to see was home jealous. Lee said that When home, if he there becаuse “... was at someone, the deceased dated tires his looking no him sense in further [sic] by appellant; were slashed another of de inway there would because boyfriends disap ceased’s mysteriously length gotten he of time could have peared party he when left a was attend however, Tyler.” Apparently, Austin to ing with deceased for a moment off to turn Tyler respond. did not Later the BOLO light the dome of his car. Lee showed already was transmitted statewide.6 As Tyler newspaper regard officers a article indicated, dispatcher it was received disappearance. ing the It was stat further o’clock, in Columbus at about five and the by ed Lee that of her fear of because stop appellant his car and seizure of appellant the had moved to Aus deceased person thirty his followed some minutes him, away get tin to she “felt” later. gun, (appel carried a The test of cause for a warrant- lant) prison parole had been but was on stringent less is “at least as as the arrest probation.5 Lee also said that two of applied respect mag- with standards appellant’s threatening calls deceased prelude to istrate’s assessment” as a issu- made Austin had been to deceased her ing an or search Whiteley arrest warrant. Lee residence. also showed officers con 566, Warden, supra, 401 91 U.S. at S.Ct. closet; tents of a box in deceased’s bedroom arrests, Applied to “without at 1035. all “diary,” photograph a she disclosed the and cir- the need to ‘balance’ the interests appellant, a deceased checkbook particular situa- cumstances involved in Tyler appellant’s name and address in tions,” York, supra, 442 Dunaway v. New thereon, printed newspaper clipping from 208, 2254, long U.S. at 99 S.Ct. at Tyler paper regarding boy deceased’s standing test for cause remains: “ disappearance friend’s and a reward infor cause exists where “facts ‘Probable papers regarding the sale mation some (the their offi- and circumstances within there appellant’s a Corvette with name they cers’) knowledge and of which a sil Lee stated that drove on. (are) trustworthy information reasonable papers con ver Corvette. The Corvette to warrant a sufficient themselves number; registration a VIN check tained in the belief reasonable caution man of registered being revealed Corvette was or is that” an offense has been Tyler (by and a license to be arrest- Homes” of committed “Woodward States, ed).’ 338 Brinegar United number was obtained. sergeant. patrol really go supervising He made it based specifics far as I could didn’t into supervis- investigating reports it to him the under his tell.” When was shown of officers sergeant "just glanced at it" and "didn’t even supervision: personally talk to Lana he did it.” finding appellant start to read theory was Lee. His sus- [his] its environs "would increase Austin or reports Typical reliability such of Lee's appellant. picions" pertaining to The decision matters, though Lee testified officer by a statewide BOLOwas made Homi- issue a sure,” gun, "she wasn’t "felt” carried Sergeant on the who later arrived cide Detail prison, was been to it and while sergeant talked with the uniformed scene and "for, charges, thought, but she wasn’t drunk she testify The did and other officers. detective it, course, face of Lee was Of on the sure.” so, during hearing; though of all awareness recollection of what reporting to the her officers may be at- collected at the scene information others, mainly the de- she had told him, to wonder what we are left tributed ceased. Perhaps go motivated him statewide. pickup” "put local on the out a 6. The decision to pickup” had been fruitless. because the "local Tyler police teletype was made and to Corvette the scene a uniformed about four o’clock at

341 160, 1302, U.S. 175-176 rights S.Ct. 1310- violated his constitutional under the [69 1311, (1949), quoting 93 L.Ed. Car- Fourth Fourteenth 1879] Amendments and States, roll v. United 132, § I, 9; U.S. under Article the evidence secured 288, 280, (1925).” S.Ct. 69 L.Ed. [45 543] as an incident thereto—the details of which we need not examine—should have been id., Dunaway, n. 9. Whiteley v. Ward- excluded from his trial. Drawing teachings on the Beck en, supra, 568-569, U.S. 91 S.Ct. at Ohio, ‍​​‌‌‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌​‌​‌​‌‍89, 379 U.S. 85 S.Ct. 13 L.Ed.2d State, supra, 1037; Barber v. at 69. (1964) and Henry v. United (1959), U.S. S.Ct. L.Ed.2d 134 judgments Appeals of the Court of we are unable to find and of the trial court are reversed and the investigating obtained cause remanded to the trial court. that, turn, officers and supervisor their we attribute to the detective who decided OPINION ON STATE’S MOTION FOR put out the BOLO See stаtewide. also REHEARING ON PETITION FOR Mississippi, Davis v. DISCRETIONARY REVIEW (1969) 22 L.Ed.2d 676 and Irvin v. DAVIS, Judge. W.C. (Tex.Cr.App.1978). 563 S.W.2d 920 original Upon submission, this Court that, request located, if appellant be unanimously reversed convic- questioning” quantum held “for reflects a tion deadly partici- for assault a court suspicion probable less than cause.7 At pant,1 upon ground the that the evidence the best record no appel shows more than adduced at hearing pursu- bond lant was considered suspect a that the and ant previous capital pickup murder indict- local and statewide put BOLO were ment2 had been insufficient to meet out with the hope might the that he be located probable State’s burden to possible as soon as show cause to order determine the likelihood seize and to search presence of his his automo- Austin at morning crime, bile killing. the time of the on the of the An and that inarticulate hunch, suspicion or the introduction good weapon faith is trial3 of the insuffi used, search, cient to constitute which was found in arrest. was Barber (Tex.Cr. therefore error. S.W.2d reversible App.1981). By rehearing, its motion for the State Therefore, arrest by Deputy contends that the facts and inferences Riehs, only strength the of the investigating BOLO and available to the three officers his own and, them, confirmation of the license through superior number to their jointly responding 7. When the first officer characteriz- feeling “(B) "strong suspicion," prosecu- ed his tor, as the retaliation for or on account credit, attempt injured person’s having to her did not to coax еxercised an him official upward power performed duty escalate it or a cause: official as participant proceeding.” in a court "Q: strong suspicion Officer this was based V.A.P.C., 1.07(a)(37) “participant Sec. defines upon information that came from Lana Lee proceeding” a court to include a witness. from, guess, Snyder. and I some Doreen But Lee, basically from Lana that correct? chequered procedural history 2. The of what A: That’s correct.” lay person, must seem to the and does seem to writer, straightforward this to be a case of mur- 1.V.A.P.C., 22.03(a)(2)(B) provides: Sec. original opinion, der is set forth in the Court’s if, "(a) person A commits an offense with ante, at footnote one. prohibited weapon, or a firearm he intention- ally knowingly bodily inju- or causes serious renewed, opening 3. When at the ry: trial, suppress his motion to the fruits of the automobile, search of his the State declined the "(2) participant proceeding ato in a court opportunity present upon further evidence cause, when he knows has been informed that the choosing the issue of instead to participant person rely solely upon assaulted is a ain court that evidence adduced proceeding: hearing. bond provided probable might proved tire-slashing severally cause to such be case, time believe at the the BOLO was issued could termination of his freedom face the crime easily had committed might than who was more which, hindsight through magic rеlease. conditional investigation, apparent it is now further now contends that the mere State done. had diary strengthens existence of opinionfairly accurately original Our appellant. claim the victim feared out facts and inferences available sets said of the entire Much same could be the record. from personal linking boxful effects two. the information shown to have been Of personal Lee’s observation of vic- But officers, surely the available to the fear, to Aus- tim’s combined with move damning most is Lana Lee’s statement that tin, slashings the threats am- the tire appellant had slashed the victim’s automo- unfortunately ply establish victim’s (as of a date of bile tires well as tires provides diary fear. The well-founded victim; testimony as to the there is nothing to a reasonable sus- further focus slashings), in time of that the proximity Persohn, picion upon appellant. Officer testify against appellant the victim was to diary, testi- officer to review the following in proceedings month based fied as follows: event, appellant had threat- and that Also, had Kornfuehrer told “A. Officer telephone in which calls ened victim diary kept. me she about drop attempted persuade her he had Lana had told him that That Lee charges slashing. it is true While kept diary she about either was that the nature the threats boy the ex friend some—about to the officers not communicated something. threatening It her or hearing, at the not elicited them time. It real clear at thе wasn’t Lee that the was adduced that Lana stated diary supposed to just life, her “obviously” afraid for victim property against his her or threats get had moved to Austin to that the victim something. It’m not settlement or appellant, and the most away from that it real what she said was. sure had within the last threat come recent upstairs I with Officer And so went or week two. checked the—her Moxley, and we appellant infer may all we that From this diary for the with Lana bedroom tendency violence displayed a toward Lee the closet where she inside those close to her at the victim and aimed kept. I might have thought it murdering the had a motive for and that he top pulled down from the of a box victim, April murdering prior her and for pulled as I the closet. As soon threats, context, In whatev- down, of it was kind of— top content, precise may be accorded er their top. Lana Lee opened up she weight. some said, diary.’ ‘Here’s the did. She had a appellant that Lee’s statement pieces three or four And it was on known to be vio- record and was criminal sized, Long legal pad paper. of prison lent, he now out of was legal paper. yellow pad in probation, was parole or on either “Q. you read it? Did violence But that little effect. itself of of great in detail. I I read it “A. didn’t specific appellant’s corroborated was I glanced over it. From what criminal tire-slashing, and the acts got what I out glanced over—from avoiding provides further motive record it, mostly splitting she told about parole or conviction;4 whether on a second Tyler, up him from property with of law by a violation appellant, probation, 5, ante) (a fact, used for enhancement drug n. conviction was prior word which appellant’s 4. "drunk”, original opinion, purposes the instant case. in see like much sounds whatever that It watertight, was over. didn’t begins possess strength go really specifics far I into as support which will far more than “mere could tell.” suspicion.” diary itself was not offered evi- Nonetheless, prior quite opinion our dence, appear and it does not at- asserting correct in police the Austin tempt was made to use toit refresh Per- were without cause when the sohn’s recollection.5 time, statewide BOLO was issued. At that disappearance police the victim’s date is had failed find a trace help. Austin; of even less can appreciate Tyler While we police yet had not suspicion, given the victim’s her relation- responded request to Austin’s for a check ship appellant, with that appellant was re- appellant’s If home. had been sponsible, and while the further events re- bed, Timbuktu, found at home in or in nothing flected the instant do case time, the suspecting reasonableness of dispel suspicion, we note that Lee even instrumentality that he carried him an suspicion conceded that in- of the crime would be nil. precisely suspi- volvement was that—mere But was neither home in bed cion. Timbuktu, Vegas, nor nor even in Las course, strong appel- Of no matter how attempted where he had to establish an victim, lant’s motive to murder the if the leading alibi. He was found on a road surrounding killing circumstances Austin, driving away from in a direction pointed strongly person to another or to Austin; earlier been seen on motive, another cause would road, traveling in the same the same di- exist to lead reasonable caution Appellant found, rection. two some prudence believe that instrumen- killing, hours slightly after the more than tality appel- of the crime would be found in ninety miles from the scene of the crime.6 possession. lant’s See Barber v. Court, It is this information which the Thus, (Tex.Cr.App.1981). S.W.2d deciding original this case on submission had the victim been murdered circum- solely upon the basis of the information pointing to, perhaps stances com- even police the Austin available to time patible with, e.g., rape robbery, the in- BOLO, the issuance of did consider. likely ference that the assail- ant would have been But vitiated. It is showing true that there is no contrary: quite facts are knocks on record that the Austin received the door, fired, shots the assailant vanishes Grange bulletin from La which would have being seen without or heard. appellant’s made them aware of where- stopped; abouts before he was it is further point ineluctably The circumstances stopping true that news of the solely killing murder for the sake of done of circumstances, necessarily in in the these the Columbus arrived Austin victim. Under rаised, spun by prior stop questions the after the threads of inference rela- itself. then, tionship appellant and the victim between are whether the information known which, while police may weave fabric no means to the Austin be added to the 874, State, 570, Leahy be of 5. We cannot certain this because an in- Tex.Cr.R. 111 13 S.W.2d strument, 4, marked State’s exhibit # was shown (opinion rehearing) on The arrest- 885 ing Persohn, recognize who stated that he did not knowledge high- officer testified to his that appears it. further mention of No this exhibit 71, way stopped, passes where record. the through Grange, spotted where La Austin; 5:15, testimony his further shows hearing the No evidence offered at bond familiarity County’s high- his with Colorado the distance to show between Austin Co- ways. verge sophistry argue It would on that any or to show lumbus of officers was he, investigators, as well as all of the Austin However, judicial of that distance. aware no- might idea have whatsoever of the dis- may tice be taken of that distance. Norris v. tance from Austin Columbus. 57, (1930); 115 Tex.Cr.R. 27 S.W.2d 246 344 1077, Crouse, In 436 Wood v. F.2d 1078

information whereabouts (10th Cir.); sub. nom. arresting in determin- cert. den. Wood v. known officer probable 402 U.S. S.Ct. Gaffney, whether there was cause court, (1971), Smith, citing stop appellant and to search his L.Ed.2d 432 automo- bile, and, so, determining totality supra, held whether if whether of the that “[i]n we must evaluate information did constitute cause existed such of information all offi- cause. the collective Unlike [Emphasis cers.” Smith added.] States,7 In Smith v. United United Moreno-Vallejo, which involved Appeals, Court of of States District Colum- case more than one officer each Circuit, through Judge Burg- speaking bia Wood, agency, like the in- same federal er, held that: case, of stant involved members different “... is to be evaluated agencies in same state. the courts on of the collective the basis Warden, Whitely also We note police than information of the rather 1031, 1037, performs act the officer who (1971), which, alia, upon inter L.Ed.2d 306 arrestings. original reversing we relied in submis- sion, states, holding probable cause not “_The test is correct whether war- shown, arresting to have been that “[t]he sought if rant could have been obtained possessed officer was not himself application agency law enforcement tending the in- factual data to corroborate corporate informa- which disclosed its Whitely com- tip Daley former’s tion, any one particular not whether offi- implication The clear mitted crime.” have infor- cer could obtained on what corroboration, any, if should that such be (Em- individually possessed.” mation he determining proba- considered in whether original) phasis in cause exists.8 ble Moreno-Vallejo v. United Although of the the decisions (5th Cir.1969),it was F.2d stated Appeals are United States Courts of that: Court, binding we find the deci “... The courts have had occasion to persuasive, especial supra sions cited be recognize police work in that effective ly light Supreme Court’s clear requires today’s highly society co mobile Whitely, supra, ar indication police operative utilization of resources. resting may be used officer’s information have, accordingly, They asserted that proba to corroborate otherwise insufficient knowledge sys in one sector of a hold, therefore, that when ble cause. We tem can availed of action anoth cooperation has some between there er, degree assuming some of communica agencies or mem enforcement between law See, e.g., tion between two. United agency, the of the same sum bers (4th Pitt, F.2d Cir. States cooperating known to 1967), (at 324) p. where court said time an arrest agencies or officers at the arresting officer a contention that by any of involved is or search the officers personal knowledge must have determining in whether considered be probable constituting cause: facts probable cause there “ there was sufficient cause, however, can Probable ‘... for. knowledge of upon rest the collective place suspect in solely That the which a is than on that police, other rather in and the direction which is trav actually makes the found officer who of the can, in combination with (Emphasis supplied).” eling taken arrest...’ strongly previous suspicion, lead founded original] in [Emphasis case, 833, (D.C.Cir.); Whitely, 8. like Crouse and instant in- cert. den. 386 835 7. 358 F.2d 1350, (1966). 1008, agency. than one law enforcement 18 L.Ed.2d 448 volved more S.Ct. U.S. 87

345 added)” probable (Emphasis cause to arrest him and con- 1879. 93 L.Ed. [Em- duct search of his phasis original] automobile has bеen at 358 F.2d 837. established at least since Carroll v. United Court, out, Supreme Brinegar, The set States, 132, 162, 280, 288, 267 U.S. following quoted passage in the Carroll, L.Ed. 69 543 In the sus- Smith, dealing for standard with the pect, reputation bootlegger, who had a as a case-by-case probable of determination agreed and who had earlier to sell unlawful of cause with due consideration both the beverages (but to an undercover officer right rights and individual the collective reneged deal), who had was seen protection of persons: partner the officer and his driving along a proof accordingly The standard of is “... leading road Rapids. from Detroit to Grand proved. must correlative what be Court, Supreme noticing judicially “ ‘The of of substance all the definitions Detroit impor- active center for the probable ‘is ground cause a reasonable spiritous of liquors, tation held that there guilt.’ McCarthy for belief v. De Ar probable stop cause to and search the 63, mit, 69, quoted 99 Pa.St. with approv suspect’s automobile. opinion. al the Carroll 267 U.S. at Brinegar States, In v. United S.Ct. at And this ‘means [45 288]. (1949), S.Ct. 93 L.Ed. 1879 justify less than evidence which would probable cause was held to exist under Marshall, conviction, condemnation’ or facts similar to ’s: suspect Carroll C.J., for the said Court more than a previously been bootlegging for arrested century ago States, in Locke v. United by the same spotted officer who him driv- Cranch L.Ed. Since [3 364]. heavily-laden his “in a automobile di- time, any rate, Marshall’s at it has come rection from a known liquor sup- source of mean suspicion: more than bare Prob ply probable illegal market, toward a under able cause exists where ‘the facts indicating circumstances probable other their circumstances within [the officers’] purpose carry illegal than to on his adven- knowledge they and which reason ture.” 338 U.S. S.Ct. ably trustworthy suffi information [are] kept It must reviewing be mind in cient themselves to warrant a man of question sufficiency reasonable caution belief that’ an question such a quintessential is a being offense has been committed. example necessity case-by-case for United Carroll v. U.S. 280, 288, determination based the facts and S.Ct. 69 L.Ed. [45 543]. Smith, supra, circumstances shown. long-prevailing seek “These standards the court stated: un- safeguard citizens from rash and observed,

“As we proba- privacy have often interferences reasonable with ble cause is sum layers charges total of and from unfounded of crime. synthesis leeway They give information and the seek to fair what also heard, know, community’s they enforcing have what the law in the they protection. many and what as trained offi- Because situations observe weigh layers cers. We but officers in the course of individual which confront It are executing the ‘laminated’ total. has often been their duties more or less repetition, ambiguous, repeated, but it bears that ‘In room must be allowed for cause, dealing part. ... as the some mistakes their But the very implies, proba- name we deal with mistakes must those of reasonable technical; men, they acting leading sensibly These are not on facts bilities. practical probability. the factual and considera- their conclusions of are everyday practical, life on which reason- rule of cause is a non- tions men, prudent legal conception affording techni- best able and technical cians, compromise Brinegar v. that has for ac- act.’ United been found 175, 1310, commodating supra opposing at 69 at these often inter- 338 U.S. S.Ct. 346 42, Requiring unduly Maroney,

ests. more 90 would Chambers 1975, See, hamper law enforcement. To allow less 26 L.Ed.2d S.Ct. law-abiding ‍​​‌‌‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌​‌​‌​‌‍White, also, would be leave citizens at Texas v. 96 S.Ct. U.S. mercy of (1975).9 the the officers’ whim ca- 46 L.Ed.2d 209 price. is the Appellant’s final contention line posed “The troublesome the knew, he evidence failed to show that facts in the Carroll case and this case is indictment, alleged in the that the victim suspicion one between mere and grand jury. had a witness the been before necessarily That must cause. line be was adduced which estab judgment formed in drawn act of Evidence the in fact lished that victim had light particular the of the and situation grand jury witness before the and that her of all the circum- with account taken upon name had been endorsed as a witness stances.” U.S. [Footnotes omitted] appellant in 175-176, upon the indictment served at at 1310-11. S.Ct. testimony that cause. Further revealed considerations, light of those and only the of names witnesses before already the and circumstances dis of faсts grand jury, the and not those of other opinion original in our and cussed witnesses, potential trial are so endorsed. including opinion, of the circumstances the appellant But evidence was offered that itself, relationship prior the crime precise the in fact been informed of the of parties, and time and location meaning of the endorsement. that, finding appellant, although hold of we relating presentation the State’s of matters was Further evidence adduced which appears leave substan appellant was aware that showed improvement, a minimal tial room for show complaining victim was the witness and the ing has been made that facts cir in the appellant sole known witness knowledge within the collective cumstances appear victim did in fact cause which the they of officers involved of which in- grand jury. This evidence before the reasonably trustworthy continuance, discovery, motions cludes signed were rea sufficient warrant depositions, and to take each sonable caution in the belief that by appellant.10 sworn to an in had committed an offense and that that, it is cer- Appellant contends while might strumentality of the offense a witness tain that victim was in fact found automobile drove. grand jury, exists wheth- before the doubt that, This er aware of that fact. contends even was Appellant also guileless cause, picture of a under- the search assuming probable testimony describing somewhat without show mined improper automobile and often overwhelm- preventing constant exigent circumstances ing attempts the details of of a to discover procurement warrant. timely life correctly personal victim’s and whereabouts overruled that appeals court of (who acquaintances were from their mutual contention, citing decision Sanchez our having of the victim’s (Tex.Cr.App. themselves aware S.W.2d grand appeared jury); at before 1979), den. 444 U.S. cert. rate, presented (1980), jury and the decision we believe 62 L.Ed.2d support the find- Supreme Court in with sufficient evidence States of the United unreasonable, presented jury given 10. evidence was before the No think it We do appeals’ support the court of re- duty which would deputies were on sheriffs two attempts his liance attorney arresting County, that offi- Colorado time in negotiate a withdrawal of arrest, transportation performed the cer charges by at- victim. Evidence such office, search suspect to the sheriffs presented hearing upon tempts at the bond simultaneously. than seriatim rather of his car cause, but was offered the issue by the State trial.

347 that, in the circumstantial police nexus here The Austin officers were aware of presented, reasonable inference is the underlying circumstances which was aware of the victim’s Lee based her Aguilar conclusions. v. Tex- appearance grand before the jury. as, U.S. S.Ct. L.Ed.2d (1964). It was clear that Lee’s knowl- The contention is overruled. edge рolice of the events related to officers The State’s motion rehearing for directly came from the victim. granted; judgment of conviction is af- knowledge The victim’s of these events firmed. firsthand, was through obtained her rela- ONION, P.J., CLINTON, and ODOMand tionship appellant. This was the JJ., dissent. obvious, only, natural and indeed the infer- ence to be drawn from the facts Lee told DAVIS, concurring. TOM G. Judge, police. I write because I believe there are In to being addition reliable and based on significant go circumstances which toward knowledge, an sufficient informant’s infor- establishing probable cause for the arrest helpful mation must itself be in terms of car, the search of his establishing cause. following The which development. warrant further given by police information Lee to officers It is clear that officers arriving at the significant: was apartment victim’s received most of their Appellant 1. calling had been the de- Lee, information from Lana the victim’s get ceased an effort to her drop primarily roommate. Lee was reporting to charges criminal mischief in Tyler the officers her recollection of what she where the deceased testify was to had been told the deceased. against allegedly who Unquestionably, Lee was a credible inform slashed her tires. calls show [The Though ant.1 eyewitness, not an she was appellant’s motive to kill the de- shooting. earwitness to the the vic As pending charges ceased. tend to possessed special tim’s roommate she infоr appellant was capable taking show mation relevant effort to catch against hostile criminal action the de- the killer. eagerly She came forward with ceased.] a citizen-informant and Appellant 2. threatening had been gave freely police. her name to the Wood phone. deceased over the Two of the State, (Tex.Cr.App.1978); S.W.2d 207 that Lee calls knew of were received Avery (Tex.Cr. 545 S.W.2d 803 appellant’s Austin. Because of also, App.1977). See Jaben v. United threats, the deceased feared for her life. obvious inference to be [The (1965); LaFave, L.Ed.2d 345 W. Search from the above is that drawn A Seizure: Treatise the Fourth life, deceased feared her because Amendment, 3.4 Sec. threatening to kill hearsay information related her.] credibility given victim to Lee 3. Because the deceased appel- feared subsequent events which occurred lant, she from Tyler moved to Aus- giving prior information and such tin, shows the deceased did [This Convincedthat she was arrest. her consider fears to be frivo- execution, marked for the victim told oth- lous.] murdered, her She indeed was ers of fear.

adding veracity this and related 4. to her Because the deceased feared for her points. life, keeping diary she to “doc: original opinion footnote number 5 of our Lee’s information. reliability suggestion is a of lack of there knew, Lee and something also from in Police officers ument” evidence case checkbook, discovery appellant’s again happened her. shows [This Tyler. appellant resided in

that the deceased took the threat seriously. her An officer later life related Sifting through the information writing in it diary saw and some that the by police, Lee to the it can be seen story Lee’s about which corroborated appellant damaging to the material most diary.] continuing a serious concerned: threats of appellant against the de- by made nature lived Appellant and the deceased had 5. ceased; upcoming trial for crim- appellant’s a together. over There was trouble expected inal the deceased’s mischief and up, they split property division when trial; previous rela- testimony in that jealous was of other appellant and and appellant between tionship existed men. souring of that rela- the deceased and a Appellant drove silver Corvette. 6. ap- real fear that tionship; the deceased’s de- Lee officers a box the 7. showed carrying out his pellant capable of was kept containing, inter ceased threats, to Austin evidenced her move alia, photo diary, a of deceased appellant’s to “document” and her efforts together, appellant appellant’s her. actions towards checkbook, newspaper clipping a appeared to murder of the deceased The a Tyler paper date from a about killing. execution-stylе was She disappeared, and who deceased separate criminal killed in the of a course relating to the Corvette. papers robbery or sexual as- such as a offense corroborated material box [The Further, suspect oth- there was sault. Lee in her statement appellant. er than prior relation- and the deceased had 3:20 a.m. occurred about The homicide a Cor- ship drove in received Columbus The BOLO was The of all of these placement vette. appel- few moments later 5:00 a.m.2 A is further evidence items one box Grange was seen La lant’s Corvette “docu- of the deceased’s desire Highway headed toward Columbus. event items ment” certain spotted at 5:30 a.m. Appellant’s car something happened to her.] High- Highway 71 between Columbus way and Interstate 10. a VIN papers contained 8. Corvette used this obtain number. Police stopped, Thus, appellant was before the registration A number. license Deputy ob- County a Colorado Sheriff’s regis- the Corvette check revealed (1) in the BOLO and the car noted served Tyler. Homes of to Woodward tered Lee, miles (2) situated 90 referred in- Lee’s corroborated further traveling away [This Austin on from from Austin formation about Corvette.] (3) approximately two hours Highway 71 homicide. after the Austin had a Lee officers that 9. told record, pro- parole or was on in- criminal facts added When these were for be- bation, reputation police and had received earlier the Austin formation Lee, to arrest information existed violent. [This spot- slight in the absence search his car. value Grange La ting statements about car factual detailed only tended corroborate criminal activities. appellant’s past Columbus Lee, Harris, but also reason- tips provided 403 U.S. United States suspicion coupled ably when aroused 29 L.Ed.2d 91 S.Ct. to officers. known other circumstances (1971).] in the hands of the collective information placed time of the Though the BOLO police 3:20 a.m., the homicide occurred at was that officers the Austin at 2:30 homicide Thus, shooting a.m. 3:20 a.m. occurred knew Polanco v. (Tex.Cr. 475 S.W.2d 763 Brinegar lant had committed the offense. App.1972). United 93 L.Ed.2d 1879

Looking at the collective police hands at the moment of appellant’s There also cause to search arrest, we find: appellant’s weapon. car for the murder

A1. dead woman. Given the circumstances under which he stopped, the search of the car was 2. A victim who had feared that her Maroney, proper. Chambers ex-boyfriend (appellant) kill would 26 L.Ed.2d 419 her. Accordingly, majority I concur in the 3. A victim who had taken her fears opinion rehearing. on seriously enough move a new city and to “document” evidence CAMPBELL, JJ.,

against join her McCORMICK and ex-boyfriend in the opinion. event she was harmed. ex-boyfriend’s 4. upcoming The trial TEAGUE, Judge, dissenting. against for criminal mischief de- case, appellate history The of this which property. ex-boy- ceased’s The case has a received certain amount of local friend had made more than one coverage, panel news reveals that a threatening phone de- call to the Appeals, unpublished Austin Court of in an get ceased to her drop charges. opinion by Phillips, Chief Justice unani- ex-boyfriend 5. The had made several mously affirmed the conviction of Paul threats a against serious nature Woodward, appellant. the deceased. panel opinion unanimously rejected ex-boyfriend 6. The deceased and the appellant’s prohibited claim that the law together, had lived and their break- the admission into evidence at his trial cru- ‍​​‌‌‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌​‌​‌​‌‍up pleasant. had not been evidence, namely, pistol, cial that had ex-boyfriend 7. The had a criminal seized without cause and reputation record and a being appellant’s without warrant automo- violent. Riehs, bile Keith deputy sheriff of 8. The deceased was shot to death County. Colorado execution-style killing that had important I point believe it is out that purpose as its one her death. appellant’s in rejecting affirming claim and suspect 9. There was no other than conviction, Appeals the Court of did not ex-boyfriend. single cite or discuss a case that was on all ex-boyfriend 10. The was discovered fours, factually legally, appel- and with hours shooting two after the aon lant’s case. highway 90 miles from Austin at I point also out that the record reflects 5:30 a.m. that a Depart- member of Austin Police ex-boyfriend, Tyl-

11. a resident of ment issued statewide “BOLO”1 bulletin er, traveling away frоm Austin being for a suspected vehicle driven Highway ex-boyfriend’s 71. The appellant. dispatcher A with the Colorado presence in Columbus at 5:30 a.m. County Department Sheriff’s received the having with his was consistent been message Riehs, relayed patrol it to Austin 3:20 a.m. duty. officer who was then on When Riehs These and circumstances suf- saw traveling through facts were a vehicle Columbus description to warrant men which ficient themselves matched the of the vehi- in the belief that an cle reasonable caution that was contained in the “BOLO” mes- appel- sage, stopped driver, offense had been committed and that he who was later “be “BOLO" stands for look- out." The word Thereafter, appellant. Although granted identified this Court rehearing, today message did not State’s motion for “BOLO” authorize conviction, appellant’s holding, affirms appel- official to law enforcement arrest among nevertheless, things, that the trial did other court lant, soon after Riehs came admitting err in into evidence at trial appellant, he him into contact arrested pistol that had Riehs been seized subsequently booked him into the Colo- appellant’s interior of from the automobile. Thereafter, County jail. report- rado Riehs It also holds that at the time Riehs seized ed a member of Austin De- Police pistol he had without warrant done, partment per- what he and that so act. gun son Riehs if asked found a inside of re- vehicle. Riehs carefully studying majority After volition, sponded he not. had On his own reviewing opinion and the authorities appellant’s stationery Riehs returned to discusses, cites and it is obvious me that automobile, appears which to have been majority erroneously of this Court sus- place appel- left in a safe when Riehs took rulings the court and the tains the trial and, jail, lant from a assistance Appeals, by holding that when Court of driver, appellant’s Riehs wrecker entered probable pistol Riehs seized the he conducting a automobile. After search and pistol cause to seize the without warrant. mission, Riehs seize found seized opinion, today’s majority Until the law finding reported an pistol, which was unquestioned as always this State has been Thereafter, police police Austin officer. search made a law to when an arrest or from Austin came to the officers Colorado pursuant to a enforcement official “BOLO” they custody of County jail where obtained message is valid or invalid. The answer pistol. The appellant and the record question, the arrest or search the whether hap- appeal clearly does not reflect what valid, always depended upon whether is has pened appellant’s automobile. was known to the the information that initiated, dispatching at the time officer af- Appeals the Austin Court of After transmitted, message or sent the “BOLO” conviction, pursuant ap- firmed his probable sufficient to establish cause was State, appellant filed a pellate law of this arrest or search. fоr warrantless review, pe- petition discretionary which probable as to cause such test by this subsequently granted tition was solely upon officers act cases where the opinion In a authored Court. unanimous request for arrest Clinton, by Judge this held that Court requests known to the officer who anoth into evi- erred when it admitted trial court er to effect the arrest. Colston officer previously pistol been that had dence the 10, State, (Tex.Cr.App. 12 v. 511 S.W.2d opinion by Riehs. unanimous seized 1974). alia, following: stated, inter Thus, majority opinion, if a Therefore, Deputy today’s until appellant by arrest pur- made strength and warrantless arrest or search was Riehs, of the BOLO message, and was num suant to a “BOLO” of the license confirmation his own challenged, it incumbent [ap thereafter was violated ber vehicle] [of upon to establish that officer rights under the the State pellant’s] constitutional message and who initiated sent “BOLO” Amendments and Fourteenth Fourth 9; to make a I, cause at that time the evidence Article Section under or a arrest of the defendant thereto—the de warrantless incident secured search of a vehicle the defend- not examine— warrantless we need of which tails driving stopped or arrested. from his trial. ant was when have excluded should hearing Warden, 560, at a 568- If the failed to establish 401 U.S. State Whiteley v. 306; challenge, that [1037],28 held on the 569, L.Ed.2d S.Ct. message (Tex. State, existed at the time “BOLO” S.W.2d Barber sent, then the arrest or search would was Cr.App.1981). be course, held unlawful. Of because of items оf defendant. Several evidence illegality, any evidence obtained as a were and introduced into evidence at seized result of appeal, arrest the search became trial. On the de- defendant’s inadmissible at the arresting defendant’s trial. officer Col fendant claimed that the State, supra; ston Wong did Sun United not have cause. In accord 9 with this what and other Courts of stated, L.Ed.2d 441 Supreme previously Nation had Court held that arrest that was made in police permitted The reason that are broadcast, reliance the radio which sophisticated technology police use such as warrant, was on an based invalid ille- bulletins, radio in order for one law en- gal support inci- would search agency forcement to communicate with oth- dent to the arrest of the in that defendant ers, is large because we have a and mobile cause. The evidence that had been seized population. require To communication in was ruled inadmissible evidence. this day solely and time to be on a human practical. basis would not be State, Peterson v. A.2d 15 Md.App. (Md.Sp.Ct.App.1972), Notwithstanding feasibility using given Whiteley following common- bulletins, strong radio there pub- is a intérpretation: sense policy lic in this as in most other holding Whiteley The immediate Union, against States of the a rule which that, just justification police as action permit police would officers to initiate an transmission, is not diminished in neither arrest or search then justify and the arrest is justification it enhancеd. If the is by search in police information hands at adequate point at message the where the arrest, the of time the rather than at the transmitted, point is it is no less so at the time the directive to arrest or detain issued. message where the is received. Con- “To encourage hold po- would [otherwise] justification the versely, inadequate if is lice officers to issue messages” [“BOLO point message at the where the trans- is “be the for” lookout memorandums or] mitted, inadequacy the endures will and or other to directives the hope arrest on not dissipated somehow be on the wires that knowledge gained additional will be or on the airwaves. In transmission which, together with the information at nothing nothing is lost and gained. is hand, probable will constitute cause. [Cita- [Emphasis Added]. argument tion An may be made Omitted]. that it would be require overtechnical to opinion majority expressly [a holds that police to withdraw his message, officer] the of the initiator “BOLO” a [“BOLO”] memorandum and issue a new one when he Department, member of the Austin Police giving probable secured facts him probable “was without cause when the 343). arrest. The argument] (Page answer is BOLO was issued.” [to statewide legitimate that no societal or police purpose In light this holding, today, of before the exists for encouraging the issuance of a issue that is before the Court would place memorandum in simple easy fact, the first [“BOLO”] and In resolve. before probable Ford, People without cause.” majority changеd v. the erroneously the law Cal.App.3d 687, Cal.Rptr. today, disposed by this case could be a (5th Dist.1984). opinion, namely: one sentence Because the message who initiated the “BOLO” Warden, Whiteley In supra, the Su- cause, probable did not have then both preme of the United Court States was con- subsequent arrest and with a fronted case where an arrest war- search by of his automobile were Riehs probable rant had issued without cause. illegal. The warrant information was transmitted However, over a statewide radio network and was notwithstanding and ex- its by a in county press received sheriff another holding that at time Riehs arrest- who, broadcast, pursuant to the arrested ed not did have Furthermore, cause, strong my even in the face as far as research re- and of a veals, knowledge the doctrine of collective policy against public this State that is officers, or information of law enforcement permit police rule of law which would team, working as an uncoordinated has nev- to initiate an or search then arrest applied to establish er invoked justify the arrest or search information or search the ac- cause to arrest arrest, hands time me majority does refer cused. And rather than at the the directive to time Federal, State, case, or Timbuk- single to a issued, majority opin- arrest or search tu, holds this. which assessing ion holds law, appel- it is formulating which Riehs had to arrest new rule of cause with its on foot- lant, majority relies to the statе obvious that this Court is restricted Warden, appears Whiteley note at the time existed However, Justice supra. and Associate memorandum issued. the “BOLO” Ap- of the California Court Andreen Furthermore, holding, majority its District, pointed out in peals, Fifth further implicitly overrules Colston su- Ford, supra, although see People v. progeny, all which pra, cases Colston’s Supreme of the United States Court principle stated have subscribed Warden, supra, in footnote Whiteley v. Colston, supra.2 amazing me that It opinion, 401 of the U.S. accomplish majority is what it able origi- possibility did touch appropriate it does not have does when securing additional corrobo- nating officer applicable appropriate facts or law he had issued the directive rative data after support its facts of the case which would nevertheless, defendant, “Thor- stop holding. and other state ough research California rule of law now mandated to reveal new federal cases has failed opinion is that in “BOLO” this footnote majority which has discussed decision (198 Cal.Rptr. may impute pertinent a court manner.” cases the future 85-86). arresting officer the collective knowl- the edge or law enforcement all following point. must the I add this

personnel may participated who have majority opinion does not cite refer The or case, or provided knowledge the infor- that anything contrary the reader what might tend consists fact that mation any- Justice Andreen has stated. Nоt even go the crime was committed. that thing from Timbuktu!!! Furthermore, necessary for it will not be pedan- exercise It would be a needless privy to arresting to be officer except in why, reasons try to restate others knowledge or information that circumstances, a law the most limited have, informa- might the fact that the arrest or must never enforcement official knowledge might have resulted or tion Nevertheless, see warrant. without search immate- efforts will be from uncoordinated 443, Hampshire, 408 U.S. Coolidge Newv. and irrelevant. rial (1971); 2022, Heath 29 L.Ed.2d 91 S.Ct. 569, depre- rule of law 175 S.W.2d only Boyd, does the new v. 141 Tex.

Not State, (1943); 164 Tex.Cr.R. rights all our v. Giacona the Constitutional cate (1957); v. 325, Burton 298 S.W.2d 587 citizens, is in accord with what it 444, State, 215 S.W.2d 180 152 Tex.Cr.R. held in Supreme Court have Court (1948). past. State, supra, pressly v. writing overrules Colston completed this dis finally had 2. After I Onion, Judge doing "clean-up” by Presiding opinion opinion, a little authored senting research, virtually Judge my rejects members re-read what various of what in of this Court stated I it all also opinions respective original opinion in their majority Odom stated his State, (Tex.Cr.App. Fry 493 S.W.2d 758 dissenting filed in opinion re- motion for and the interesting, 1973). because the I find rather hearing supra. Fry he wrote in language implicitly, if its ex- majority majority, however, formulating highway. its left on the Subsequently, two law, new rule of upon relies highway patrol several Feder- officers saw the abandoned support vehicle, al decisions as holding for its made contact with arresting both the officer, warrantless arrest of patrolmen asked who bring and the warrantless search оf his automo- county jail, vehicle to the which was permissible bile were under the law. How- By opinion, done. the two highway ever, a careful reading of patrolmen those decisions also had received the same quickly should anyone reveal to message “BOLO” arresting officer majority’s reliance misplaced. arresting received. The officer asked highway patrolmen to search the de Two of its cases are factually not even or vehicle, fendant’s they which did at the legally in point. The holding facts and county jail. Additional checks were found States, (D.C.Cir.1966), Smith United 358 F.2d 833 inside the defendant’s high vehicle denied, 1008, t. 386 U.S. cer S.Ct. way patrolmen. question The sole 1350, (1966), 18 L.Ed.2d 448 and Mor panel was before the of the Tenth Circuit States, eno-Vallejo v. United 414 F.2d 901 was whether the belated search of the vehi (5th Cir.1969), are images mirror cle was lawful. Applying Chambers v. Ma Draper 307, v. United 358 U.S. roney, 90 S.Ct. S.Ct. 3 L.Ed.2d 327 (1970), panel L.Ed.2d 419 sustained the majority also relies ‍​​‌‌‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌​‌​‌​‌‍Wood v. search of the vehicle. Crouse, (10th Cir.1971), 436 F.2d 1077 cert. search, In sustaining the panel denied sub. nom. Gaffney, Wood v. point careful why so, out it had done U.S. 29 L.Ed.2d 432 namely: sequence “The of all the events (1971),a Shephard’s case which Citator re and the conduct bring of the officers flects has never been cited either a ma case within justification Chambers and the jority dissenting opinion by any member for the search still obtained when it was Court, past of this present. Thus, made.” because there was However, Crouse, supra, Wood v. is fac- cause to search the vehicle at the scene tually a little closer to this case than is stop where the and arrest of the defendant Smith or Moreno-Vallejo, supra, in that at occurred, permissible it was for the least in that case there is a reference to a arresting officer to advise other law en- type However, “BOLO” message. there, officials, forcement highway patrol- here, contrary concerning no issue prob- men, to conduct a belated search of the able cause for either message, the “BOLO.” county jail. vehicle at the arrest, defendant’s or the search .the of his noted, previously panel As opinion the in vehicle was raised. The issue in that cause Crouse, supra, Wood v. does not reflect police right concerned whether the had the challenge that a stopping was made to the to conduct a belated search of the defend- defendant’s vehicle or to the “BOLO” mes ant’s vehicle. The facts reflect that the sage lacking probable Thus, cause. nei arresting officer had received a “BOLO” pertinent ther pertinent the facts nor the message particularly for a described vehi- Crouse, law stated in supra, Wood v. which message cle. The “BOLO” also stated that relies Maroney, supra, Chambers v. occupant pass an of the vehicle had tried to applicable are to this cause. burglary a check obtained from a recent The a business establishment. vehicle that In Chambers v. Maroney, supra, the Su- stopped arresting preme the officer matched in all Court held that if a officer in things vehicle described the probable the “BOLO” has cause to search a vehicle at message. A search of the defendant driver place arrest, the time and of the a search of check that had taken from revealed a the vehicle at another place, time and even recently burglarized though the business establish- arrest, done several hours after the passenger The driver and his ment. were did not violate the Fourth Amendment. In county jail. taken to the The vehicle sustaining search, the Supreme belated following: expressly probable-cause securing Court stated the “For after arrest purposes, we no differ- warrant.” constitutional see seizing holding car ence between ... a Regardless implication of what clear presenting probable

before cause issues Supreme may Court have intended when it magistrate carrying and ... an imme- out put opinion, footnote 12 in its the fact diate search without a warrant.” any court, that ei- remains no decision Timbuktu, ther Federal or even Thus, Crouse, in supra, v.Wood because discussed, applied, much less what has ever probable cause to search the defendant’s Supreme Court stated footnote vehicle existed when the arrest of initial Furthermore, my yet research has to re- occurred, it thereaft- defendant was not veal, majority and the does not cite the necessary go er obtаin search case, single reader to a where an arrest or magistrate warrant from a in order to be- all search was sustained when that was latedly Unquestiona- search the vehicle. shown was arrest law enforcement patrolmen bly, highway because who pursuant acting solely who official searched the defendant’s vehicle had re- an insufficient to sustain cause message ceived same “BOLO” message. “BOLO” arresting officer caused to take majority The also either or mis- misreads did, message apparently action he which States, interprets Carroll v. United prob- contained sufficient facts to establish (1925), 46 S.Ct. 69 L.Ed. U.S. cause, underlying which able was an factor States, Brinegar United panel caused of the Tenth Circuit 93 L.Ed. Crouse, supra. hold as it did Wood v. Carroll, supra, although Supreme Thus, factually legally, both neither opinion regarding much in its Court said Crouse, supra, nor v.Wood Chambers exception” the “automobile to the warrant appli- Maroney, supra, progeny, nor its are nevertheless, requirement, held that cable to this cause. is known an officer consti- if there facts majority Whiteley asserts tuting probable a vehi- cause believe that Warden, supra, Supreme left the Court carrying illegal mer- cle is contraband implication if arresting clear chandise, then and a an arrest search offi- cer, although possessed not himself will sustained. state the vehicle Or to tending data an in- factual to corroborate primary holding way: in another If the tip, Drаper former’s see v. United arresting officer has cause to be- nevertheless, supra, had such corroboration criminally objects con- lieve that related are existed, then could be such considered he then has the cealed an automobile determining probable cause exist- Hence, whether right to search that automobile. Court, however, Supreme made ed. the warrantless search vehicle holding. such Carroll, supra, un- was not unreasonable circumstances, because the officers der However, reading portion of after belief, simply a Warden, supra, Whiteley v. to which good expectation, which subjective faith refers, majority opinion it is obvious to justify sufficient is- would have been actually referring to is majority what of a search had their infor- suance warrant states: which opinion, footnote of the magistrate, even mation been laid before noon issued at about “The arrest warrant fact, though, in it had not been. Accord- 24, November 1964 ... State bulletin ingly, scope the lawful for searches under p.m. same at 3:03 that 881 was broadcast Carroll, supra, precisely the is determined Og- apparent It that Sheriff day ... is way scope as of of same the execution burn, complaint made the officer who [the warrants. search message being “BOLO” led to the which States, acquire Brinegar supra, sent], did himself additional United possibly Supreme Court sustained a of an supporting search corroborative data things. automobile wherе it was that Feder- order The best shown of that I can deter- charged enforcing al officers federal majority mine is that facts the states regulating statutes beverages alcoholic had, that which the majority Riehs asserts patrol recognized on routine were nature, were of a corroborative those are having of an automobile as been driver majority facts implicitly which states recently involved in liquor illicit transac- original that the author the unanimous tions, who was then headed a well toward obviously opinion holding overlooked illegal liquor known market. The driver of probable that Riehs did not have cause to had recently the vehicle arrested been arrest or search his automobile. the officers one of under the circum- same [ap- Those are the following: facts “He Upon challenge stances. existence to the pellant] found on a leading road from cause, upheld Court Austin, driving in a away direction from validity of the arrest. Austin; he had earlier been seen on above, it From should be obvious road, traveling same in the same direction. supra, neither Carroll nor Brinnegar, are found, Appellant was some after two hours applicable to this cause. slightly the killing, ninety more than miles Interestingly, Gambino United from the of the scene crime.” 275 U.S. 48 S.Ct. 72 L.Ed. I exclaim other this members of (1927), which was an almost identical Court: If what was in the “BOLO” mes- supra, situation as found in Brinegar, sage is added to the above and this Supreme Court held sufficient to constitute cause fac- established offi- because the tual data that committed the mur- cers who had searched the automobile Austin, might der of the decedent we the defendant without had no warrant rip provisions well out of our law the knowledge at the time of the arrest and Fourth Amendment to the Federal Consti- search seizure that the defendant driv- I, Art. tution and Section of the Texas background er of the vehicle had any Constitution, using as well as cease in our history of illicit activity, nor the ar- were legal vocabulary phrase “probable resting cognizant officers commis- cause.” sion of criminal offense. However, before the members of Notwithstanding it does not have either that, pray I Court do that each ask will support holding, the facts or the law to its following question: himself ma- If the majority nevertheless the follow- holds jority opinion’s holding is on such solid ing: legal ground, why is it that it cannot cite a showing a minimal ... has made case, single Timbuktu, even one from that the facts and within circumstances support factually legally? would both knowledge the collective the officers they and of which had reason- involved It see is obvious its haste to trustworthy were suffi- ably case, justice in this majority done what the to warrant a of reasonable cient although accept refuses and will not is that in the belief that caution might suspicion, Riehs have had reasonable an offense and an instru- committed message, based “BOLO” stop on the mentality might of the offense be found detain temporarily purposеs for automobile he drove. investigation, such as what to find out doing morning at that hour I Although yet ready accept am not driving vehicle on a opinion his road in a direction majority rule of law the the new Austin, to, nevertheless, away diligent- approximately ninety gives birth I have facts, opinion other miles from scene of see ly killing, searched Ohio, Terry warrantless and the than arrest entry (1968), appellant’s into automo- L.Ed.2d and progeny, warrantless 889 its he did Riehs, that added to collective Instead, bile take that action. without 356 Legislature in 1979 to

probable cause and amended the statute he arrested person “performed include who had an later searched vehicle. Also a State, in a participant as a court Armstrong duty see 550 S.W.2d 30 v. official State, (Tex.Cr.App.1976); proceeding.” [Emphasis v. 558 court Fatemi Added] term, (Tex.Cr.App.1977); “participant pro- The court Leigh S.W.2d 463 and in a State, ceeding,” judge, a (Tex.Cr.App. 394 is defined mean “a ton S.W.2d 1976); State, attorney Tarpley prosecuting represents who S.W.2d state, State, juror, a a (Tex.Cr.App.1978); grand party in a court Baldwin par- (Tex.Cr.App.1980). proceeding, attorney representing a an S.W.2d V.T.C.A., witness, ty, juror.” a or a Penal foregoing For all of above and rea- Code, 1.07(a)(37). Sec. sons, majority holding I dissent to the statute, By terms of the when at the time Riehs arrested and the formal complaining witness the victim is his vehicle he had cause or searched officer, prop- peace other than a in order to do both. committing an erly charge person with a yet There is a fundamental reason more statute, necessary offense it is under why appellant’s should set conviction that the or state the indictment aside, legal- and that he was not is because following elements: charged committing a ly with criminal of- (1) (2) A firearm or a person, with a however, majority, fense. does (2) prohibited weapon intentionally or I subject, to write this content choose on (3) bodily inju- knowingly, causes serious already done suppose having sufficient (4) (5) ry, person, who is a to another part damage to a the law of this State. of (6) assaulting participant, court and the though majority does not write Even party or had been informed knew subject, I shall. person participant assaulted was a Appellant violating was indicted for (7) proceeding, and the assault a court Code, V.T.C.A., provisions of Penal Section in retaliation for or on account occurred 22.03(a)(2)(B). (8) having per- injured person’s indicted, At the time Sec. partici- a duty an as official formed 22.03(a)(2)(B) provided Penal Code [Emphasis pant proceeding. in a court follows: Added]. (a) person A commits offense [the parts indict- Omitting formal if, deadly participant] assault a court cause, alleges appellant: ment prohibited weapon, a firearm a with or intentionally there ... did then and intentionally knowingly causes serious firearm, a hand- knowingly a to-wit: bodily injury: bodily to Patri- gun, injury serious (2) court participant proceed- in a Dohnalik, participant in а court cia or has in- when he knows proceeding, to-wit: a witness Cause is a formed that the assaulted in the 241st District Court No. 1-80-28 participant proceeding: in court Texas, County, styled The State Smith (B) for or on account retaliation Woodward, Jr., Lanier v. Paul Texas having injured exercised person’s Paul knew when the said Woodward performed an power an official said Patricia had been informed participant in a duty as a official said participant Dohnalik was [Emphasis proceeding. court Added]. in retaliation proceding, Court statute, the said Patricia Dohna- Art. on account of above precursor to the duty Legisla- having performed lik’s by the originally enacted official proceed- participant as a in said court From 1858 until State in 1858. of this ture having appeared testi- applied ing, to-wit: applicable statute Jury as a witness the Grand Payne v. S.W.2d officers. peace fied before However, returned County, Texas that Smith (Tex.Cr.App.1980). fined, interpreted, No. construed the term indictment in said Cause 1-80-28 or official,” in the 241st District Court of Smith “public see Vol. Words and Texas, he, County, Official,” the said Paul Phrases, under “Public reveals Woodward, did then and cause seri- there every person in instance where a has bodily ous injury to the said Patricia official,” “public a been held to be and thus Dohnalik, by shooting said her with duties, capable performing of official such handgun, thereby causing the of death acting governmental then in person was a the said Patricia Dohnalik. executive, legislative, capacity, in either the government. My judicial branches of or question Court should decide is this yet single to reveal a instance research has the above indictment states a vio- whether 22.03(a)(2)(B),i.e., performing duty, a or of a where a citizen civic lation Sec. whether person appearing testifying legal duty subpoenaed, appear- a if such as before grand jury performing duty? testifying grand jury, is a has an before official duty” The term “official is not “public defined been classified as a official.” ever Therefore, term the Penal Code. such alleges indictment this cause common, given ordinary, must be its the decedent this cause been mur- 5429b-2, meaning. familiar Art. 2.01 Sec. dered in retaliation be- Y.A.C.S.; 3.01, Art. V.A.C.C.P. performed cause the decedent had an offi- A of the Penal review Code reflects appeared duty, cial to-wit: she and testified in all instances where the term “official Jury as a before a Grand of witness Smith used, duty” is it is used in the context However, County, responsibili- Texas. performance duty by public of of a a serv ty testify grand of a a jury citizen before “public ant. The term servant” is defined performance duty, of is an official Code, Y.T.C.A., in the Penal see Penal but, instead, performance is of a civic Code, 1.07(a)(30). However, Sec. the defini duty, legal duty subpoenaed. if a “public tion for the term servant” limits its Thus, because the retaliation that was meaning persons performing gov some alleged ap- to have been committed i.e., function, еrnmental a iswho perform- pellant was not on account of fulfilling public duties of office which are decedent, duty” by of ance an “official nature, involving performance in their the instant does state indictment a Sec. portion governmen of exercise some of 22.03(a)(2)(B) supra. offense. See power falling tal under either the execu tive, legislative, judicial of branches money, I must ask: sum of what government. past Texas Courts incorporeal of this value hereditament? duties,” have referred to term “official advowson, equivalent its Is value of an see, following positions: reference tithe, common, way, dignity, a a State, example, de v. la Garza franchise, pension, annuity, or a rent? (a (Tex.Cr.App.1979), jailer); S.W.2d Ex VII, Law, English A History See Vol. parte Spain, (Tex.Cr.App. 589 S.W.2d 132 Holdsworth, page Sir William at 1979), (a attorney); district Gonzalez Quis I am ipsos Custodiet custodes? State, (a (Tex.Cr.App.1978), 574 S.W.2d 135 Chancellor, of the office aware Lord constable); State, Sutton v. 548 S.W.2d I, Law, at History English supra, Vol. A officer); (Tex.Cr.App.1977), (a police 251; V, Id., 409; page Vol. page at State, (Tex.Cr. Mutscher v. 514 S.W.2d Id., Constable, XIII, page office of Vol. at (a App.1974), legislator); Dorsey 447; Peace, the office of Justice of the Vol. (a (Tex.Cr.App.1969), 450 S.W.2d 332 dis XIII, Id., 446; page high the office of judge); trict court Petro-Chemical Trans bailiff, XII, Id., page Vol. and such Carroll, (Tex. port, ‍​​‌‌‌‌​​‌‌‌‌​​‌​​‌​​‌​‌‌​‌​​‌​‌‌‌‌‌‌‌​​‌‌‌​‌​‌​‌‍Inc. S.W.2d 240 offices, my other “official” but research 1974), (a record). clerk a court of yet anywhere English has to reveal where

My many tongue examination is the thing decisions native there is such a Nation, by courts de- which have “office of a witness.” foregoing For all above rea-

sons, respectfully majority I dissent to the

affirming judgment of the Court of conviction,

Appeals. Appellant’s as a mat- law,

ter should be reversed and not

affirmed.

Bruce K. ESCO John B.

Williams, Appellants, Texas, Appellee.

The STATE Of

No. 61501. Texas, Appeals of

Court of Criminal 1.

Panel No.

Dec.

Case Details

Case Name: Woodward v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 7, 1984

Citation: 668 S.W.2d 337

Docket Number: 092-82

Court Abbreviation: Tex. Crim. App.