Angel v. State

Decision Date07 October 1987
Docket NumberNo. 912-85,912-85
Citation740 S.W.2d 727
PartiesSilas Owendoff ANGEL, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Russell C. Busby, Austin, for appellant.

John B. Holmes, Jr., Dist. Atty., William J. Delmore, III and Gladys Aguero, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appellant was convicted of theft of property valued between $200 and $10,000. V.T.C.A., Penal Code § 31.03(d)(4)(A) (1974). Punishment was assessed at confinement for five years in the Texas Department of Corrections. The Houston (14th) Court of Appeals affirmed, holding, inter alia, that city police officers have county-wide jurisdiction to make warrantless arrests. Angel v. State, 694 S.W.2d 164, 170 (Tex.App.--Houston [1st Dist.] 1985).

We granted appellant's petition for discretionary review to determine whether a Tomball city police officer, while patrolling outside the Tomball city limits, had authority and jurisdiction under Texas law 1 to make a warrantless arrest of appellant. 2 We will affirm.


Shortly after 4:00 a.m. on August 29, 1983, Tomball City Police Officers Toombs and Vaughn were on routine patrol along the eastern edge of the Tomball city limits. 3 While patrolling outside the city limits of Tomball but inside Harris County, they observed appellant driving a piece of heavy road paving equipment 4 in the dark, without any lights and on a public road.

The officers stopped appellant and asked him for "some type of identification" and "what he was doing." (R. IV-10). Appellant informed them "that he [appellant] worked for Bell Construction and that he was moving the vehicle or the backhoe to another job site." (R. IV-10). 5 The officers communicated with their dispatcher by radio and requested a check on appellant's name and driver's license number. Prior to receiving a response from the computer check, Officer Toombs completed questioning appellant and advised him to drive on the shoulder of the road because the vehicle had no lights. Appellant then resumed driving down the road.

As appellant drove away, the officers were informed by their dispatcher that the Department of Public Safety had an "open

traffic warrant" on appellant. (R. IV-13). The officers again stopped appellant and waited for the dispatcher to confirm that the warrant was still valid. While waiting for confirmation, Officer Toombs "observed a red wire attached to the starter [of the tractor]." (R. IV-14). Based on his experience, Officer Toombs believed that the wire had been used to "hot wire" or "bypass the key switch" on the tractor. (R. IV-15). Meanwhile, the officers received confirmation that there were two warrants on appellant out of Walker County for speeding and failure to appear. Appellant was then placed under arrest "for the traffic warrants" and "for investigation of the possible theft." (R. IV-16).


Prior to trial, appellant filed a motion to suppress all evidence seized as a result of his detention, including the tractor and his oral statements. 6 During a pre-trial hearing, appellant's attorney argued that 1) the Tomball police officers were acting "outside the jurisdiction of [their] authority under [Article] 2.13 of the Code of Criminal Procedure," 7 2) appellant was violating no laws when he was stopped, and 3) appellant's oral statements following his arrest were not taken down "in compliance with Article 38.22 of the Code of Criminal Procedure." (R. IV-34). The trial court suppressed all oral statements made by appellant at the time of his arrest. However, the trial court denied the motion to suppress insofar as it applied to the tractor.


In its brief before this Court, the State challenges, for the first time, 8 appellant's standing to complain of his allegedly illegal arrest. We must first determine whether such a belated claim is possible.

In Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1984), this Court held that the State could challenge, for the first time on appeal, a defendant's standing to complain of an illegal search or seizure. Because the State raised the issue before the court of appeals in Wilson, supra, our holding must be understood to allow the State to challenge standing for the first time on direct appeal. Following the Supreme Court's reasoning in Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed. 308 (1972), this Court recognized that standing was a substantive element of a defendant's search and seizure claim, and the burden for establishing that element lies with the defendant. Wilson, supra, at 669. Therefore, we "no longer view[ed] the absence of a challenge to a defendant's standing [on direct appeal] as a 'failure' of the government's." Id. However, different considerations apply on petition for discretionary review.

Our state constitution limits this Court's discretionary appellate power to review of "a decision of a Court of Appeals in a criminal case as provided by law." Tex. Const. art. V, § 5; see also Tex.R.App.Proc. 202(a). Our own rules of procedure further limit our review to those particular These principles require the parties to obtain a decision by a court of appeals on a particular issue before seeking review of that decision by this Court. By failing to present a court of appeals with an issue to decide, a party may waive the opportunity to litigate the same issue before this Court.

grounds raised in the petition and granted by this Court. Tex.R.App.Proc. 202(d)(4); see McCambridge v. State, 712 S.W.2d 499, 500 n. 2 (Tex.Cr.App.1986) (discretionary review strictly limited to ground raised and granted in petition); Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J., dissenting) ("Our grant of review was no broader than the ground presented...."). By doing so, we narrow our appellate focus to a particular issue, thus avoiding wholesale review of an entire case. See, e.g., McCambridge, supra, at 501 n. 6 (issue on voluntariness of consent not granted for review). Given these constitutional and procedural restrictions upon our review power, "our [discretionary] review is limited to those points of error decided by the courts of appeals, included in petitions for discretionary review and granted as grounds for review." Arline v. State, 721 S.W.2d 348, 353 n. 9 (Tex.Cr.App.1986).

In the instant case, the State did not present the issue of standing to the Court of Appeals as an independent ground for upholding the trial court's ruling on the motion to suppress. Consequently, the Court of Appeals did not decide whether appellant had standing to complain of any search or seizure violation. Without a decision by the Court of Appeals on that issue, this Court has nothing to accept for review regarding appellant's standing. Therefore, we find that the State has waived the right to challenge appellant's standing to complain of his detention, arrest and the subsequent seizure of the tractor. 9


Returning to the ground for review granted by this Court, we begin by noting that appellant challenges the legality of his warrantless arrest on two distinct bases. First, he argues that Officer Toombs had no authority under state law to make a warrantless arrest. Second, he argues that even if Officer Toombs had authority for making a warrantless arrest, he acted outside his territorial jurisdiction by arresting appellant outside the Tomball city limits. 10 We must first determine whether Officer Toombs had authority to make a warrantless arrest.

A. Authority for Warrantless Arrest

The Court of Appeals held that Officer Toombs had no authority to make a warrantless arrest of appellant for operating a tractor without lights because it did not constitute an offense under state law. Angel, supra, at 170. However, the Court of Appeals went on to find that "appellant was a 'suspicious individual' properly subjected to an investigatory stop." Id. (relying upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Court of Appeals found that Officer Toombs, after releasing appellant, subsequently acquired cause for a second stop because of the discovery of traffic warrants, followed by the development of probable cause for a warrantless arrest upon discovering that the vehicle had been "hot-wired." Id. The Court of Appeals also found that Officer Toombs had an independent basis for initially stopping appellant: to protect "public Appellant argues that the Court of Appeals correctly held that "it is not against the law to drive road-paving equipment without headlights." Id. at 170. Relying upon that premise, appellant concludes that Officer Toombs' subsequent discovery of evidence that the tractor was stolen was tainted by the initial unlawful stop.

safety on the highways of Harris County," regardless of the absence of any legal violation committed within Officer Toombs' view. Id. at 170-71.

The State argues that the Uniform Act Regulating Traffic on Highways, V.A.C.S., Art. 6701d, (hereinafter Uniform Act) provides that road-paving equipment must be operated with lights if operated at night. We agree.

Article XIV of the Uniform Act prescribes the equipment, including lighting, that must be installed on vehicles operating on public highways. V.A.C.S., Art. 6701d, §§ 108-139F (1977 & Supp.1986). "Road machinery" is excluded from those requirements, "except as herein made applicable." Id. at § 108(c). Road machinery is thereafter included among those vehicles that must comply with the lighting requirements when such machinery is operated upon a state highway at any time from a half hour after sunset to a half hour before sunrise. Id. at §§ 109(a) & 122(e). Therefore, the Court of Appeals incorrectly held that "it is not against the law to drive road-paving equipment without headlights." Id. at 170. Given the existence of such an offense, we must now...

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