Anderson v. State

• Citation: 932 S.W.2d 502
• Decision Date: 11 September 1996
• Docket Number: No. 71808,71808
• Parties: Robert James ANDERSON, Appellant, v. STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 502

932 S.W.2d 502

Robert James ANDERSON, Appellant, v. STATE of Texas, Appellee.

No. 71808.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 11, 1996.

Published in Part Pursuant

to Tex. R. App. P. 90.

Rehearing Denied Oct. 30, 1996.

Warren L. Clark, Amarillo, for appellant.

Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

KELLER, Judge.

Appellant was convicted of murder during the course of aggravated sexual assault and aggravated kidnapping and sentenced to death. Appeal to this Court is automatic. Art. 37.071(h) ¹. Appellant presents twenty-six points of error. We will affirm.

1. Pretrial Investigation

On June 9, 1992, neighbors observed a man pushing a grocery cart with a styrofoam ice chest inside. Minutes later, one of the neighbors, Lewis Martin, found the ice chest in a dumpster and discovered that the ice chest contained the body of a five-year-old girl. Martin called the police, and officer Barry Carden was dispatched to look for the suspect. The initial description of the suspect was that of a white male, about thirty years of age, wearing a black shirt, dark jeans, tennis shoes, and an orange baseball cap.

Within ten minutes after receiving the dispatch, Carden approached appellant, who matched the description except for the shirt. Carden asked appellant for identification and a residential address, both of which appellant provided. Appellant asked why he had been stopped, and Carden replied that he was investigating an incident that occurred a few blocks away. Carden then asked appellant where he was going and where he had been. Appellant answered that he had pushed a grocery cart back to the Homeland store on nearby Western street. At this point, Carden asked appellant not to say anything else and further asked appellant if he would be willing to go back to the scene of that incident so that the witnesses could take a look at him. Appellant agreed to go, but Carden testified that he would have detained him for that purpose had he refused. Appellant sat in the back seat of the patrol car and was driven to the witnesses' location. The witnesses identified appellant as the individual seen pushing the grocery cart containing a styrofoam ice chest. At that point, appellant was handcuffed, advised of his constitutional rights, and transported to the Special Crimes Unit.

Upon arrival at the Special Crimes Unit, physical samples were taken from appellant with his consent. He was also interrogated and gave both oral and written confessions. Miranda warnings were given and consent forms were signed prior to obtaining these statements. The police also obtained appellant's consent, a valid third party consent, and a warrant to search appellant's home. We will now address appellant's federal constitutional arguments concerning these events. ²

In point of error twenty, appellant argues that the pretrial identifications were the fruits of an illegal arrest in violation of the Fourth Amendment of the United States Constitution. "A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." California v. Hodari D., 499 U.S. 621, 627-628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). The "reasonable person" standard presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (emphasis in original). Further, an officer's subjective intent to arrest is irrelevant unless that intent is communicated to the suspect. Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6. See also Stansbury v. California, 511 U.S. 318, ----, 114 S.Ct. 1526, 1530, 128 L.Ed.2d 293, 300 (1994) (uncommunicated belief that person is a suspect irrelevant to Fifth Amendment custody determination; citing footnote 6 of Mendenhall ).

We have held that a person who voluntarily accompanies investigating police officers to a certain location--knowing that he is a suspect--has not been "seized" for Fourth Amendment purposes. Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). We have also explained that:

We are unaware of any rule of law which forbids lawfully constituted officers of the law from requesting persons to accompany them, or of providing transportation to the police station or some other relevant place in furtherance of an investigation of a crime. Nor are we aware of any rule of law that prohibits police officers from voluntarily taking a person to the police station or some other relevant place in an effort to exonerate such person from complicity in an alleged crime. Nor are we...