Armstrong v. State

• Decision Date: 27 November 1985
• Docket Number: No. 68980,68980
• Citation: 718 S.W.2d 686
• Parties: Kerry Douglas ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 686

718 S.W.2d 686

Kerry Douglas ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 68980.

Court of Criminal Appeals of Texas En Banc.

Nov. 27, 1985.

Rehearing Denied Oct. 22, 1986.

Curtis Pritchard, Ben Hill Turner, Cleburne, for appellant.

Dan M. Boulware, Dist. Atty., Wayne Bridewell & William G. Mason, Asst. Dist. Attys., Cleburne, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of capital murder. Upon receiving the jury's affirmative answers to the two punishment issues, the court assessed punishment at death. See Art. 37.071, V.A.C.C.P. We abated the appeal so that the trial court could file findings of fact concerning the voluntariness of appellant's confession. Those thorough and extensive findings are now before us and we proceed to consider the appeal. ¹

Appellant challenges the legality of his arrest and subsequent confession. In order to put his contention in the proper context we first set out the facts.

Charlie Maldonado, manager of Earl Williams grocery store in Cleburne, was shot to death on August 4, 1981. His body was found slumped on a lettuce crate in the produce freezer of the store at about 7:00 a.m. He had been shot three times, including two shots in the head.

Earl Williams, owner of the grocery store, testified that he had placed about $7600.00 in the safe in the store when he closed the store on August 3, 1981. The safe was found open and the $7600.00 missing on August 4, at about 7:00 a.m.

William Montgomery drove past the grocery store at about 6:35 a.m. on August 4. He saw Maldonado opening up the store, as usual, and also noticed a black male standing slightly behind Maldonado with a newspaper folded over his right wrist. The black male looked in both directions and took the newspaper off his arm. Montgomery saw something in his right hand but could not tell what it was. The black male was wearing a blue shirt, blue jeans, and something on his head. Montgomery testified that the black male could have been appellant, but that he was not positive.

Carolina Marbut passed by the grocery store at about 6:40 a.m. on August 4, 1981, on her way to work. She saw a black male run from the store carrying a brown paper bag in one hand. He was wearing a blue shirt, blue jeans, and something on his head. She could not identify appellant as that man.

Acting on an arrest warrant, Officer Robert Killinger arrested appellant about 11:00 p.m. on August 4, 1981. Appellant attacks his arrest, arguing that the affidavit supporting the arrest warrant does not contain underlying circumstances showing that the "informers" were credible and reliable.

W.D. Baker, a police officer for the city of Cleburne, appeared before Judge Joe Y Post, a justice of the peace in Cleburne, and swore that,

I have good reason to believe and do believe based upon the following information the affidavits of Lora Pollard, Caroline Marbut, Bob Gatlin and W.H. Montgomery which are attached hereto and incorporated herein ... that Kerry Douglas Armstrong on (or about) the 4th day of August, A.D. 1981, ... did intentionally and knowingly cause the death of an individual to wit: Charlie Maldonado by shooting him with a firearm....

The four statements attached to Baker's affidavit are unsworn statements. Pollard's statement is the most directly damaging to appellant. She listed a Cleburne address as her home and stated the following:

On the night of July 28, 1981, I was at the Washateria on Brazos Street, Cleburne, Texas. Kerry Armstrong called me over to his car. It is a new model car, light green on the bottom and dark green on top. I got in the car with him and went to his house on Brazos Street by Curlee's filling station. It is a green and white house.

We went in the house and we were talking and all of a sudden, he said he wanted me to go to bed with him. I would not do it and he knew I wouldn't so he pulled a pistol on me. I started trying to get him off the subject and then he started talking about how he was tired of working for white men and he was talking about Earl Williams and saying he was going to rob Earl Williams store. He said he was going to stay up all that night and be there when they opened the store and rob them when they opened and he didn't care who was there, that he would just shoot them and take all the money. He was also talking about moving out of Cleburne because everyone here knows his background, then he said that he just might stay here and get married. After all that talk, he still had the gun in his hand and he asked me if I was ready to get in bed with him and I was afraid of him because he said that if I didn't have sexual relations with him, he would kill me and then kill himself, because he just didn't care. I told him that if that was what he wanted I would so we went to bed and he had sexual relations with me.

After that, someone called him on the phone and he talked to them a little while. Then I told him I wanted to go home and he took me home.

Nothing happened at the store the next morning and so I did not think anything else about it. I did tell my boyfriend, Arthur Rogers, what he had said and done, I told Arthur this on Friday July 31, 1981. This morning, August 4, 1981, Arthur called me and told me about Mr. Maldonado being killed up at Earl Williams' store and the store being robbed and I just know that Kerry Armsrong did it.

Kerry Armstrong is about 5'5"', is fairly slight built, usually has a cap on his head which is a little round cap that fits down close to his head with a little short bill on it. It is not like those other caps with the big bills that everyone else wears. It is a tan color, tweed sort of material, and when he puts it on, it spreads out on his head.

Bob Gatlin, an employee at Earl Williams Grocery Store gave a statement saying that on August 4, 1981, he arrived at the store at 6:55 a.m. He saw Maldonado's pickup truck parked on the side of the store, as usual, and he went inside. He found Maldonado lying inside a walk-in cooler. He also saw Maldonado's keys beside the open safe. The money was missing from the safe.

Carolina Marbut worked for the Santa Fe railroad. In her statement she said that on August 4, 1981, at about 6:40 a.m., she drove by Earl Williams Grocery Store. She saw a pickup parked at the side of the store. As she passed the store, Marbut noticed a black male, between 17 and 25 years old, about 5'6"', slender build of about 135-145 pounds. He was wearing a blue, "uniform type" shirt, blue jeans, and a cap or hat. He was carrying a brown paper sack in his hand as he ran from the front of the store and headed east, turning down the first street by the store. Marbut said all the lights in the store were on and she did not see anyone inside the store.

W.H. Montgomery, also an employee of the Santa Fe Railroad, stated that he drove by Earl Williams Grocery Store almost every morning on his way to work and that he usually saw Maldonado opening the door. On August 4, 1981, Montgomery drove by the store at about 6:35 a.m. and saw Maldonado opening the door. He also saw a black male standing behind Maldonado with a newspaper folded over his right forearm. Maldonado opened the door and as the two stepped inside the store Montgomery saw the black male pull the paper off his arm and saw something in his right hand. Montgomery could not tell what it was. Montgomery said the black male was wearing blue jeans and a dark blue shirt, had short hair, and was wearing a light colored object on his head that did not look like a regular hat or cap.

Appellant bases his contention of the insufficiency of the arrest warrant affidavits on the Fourth Amendment to the United States Constitution. He contends that since the aforementioned statements supporting the warrant were hearsay statements, the "veracity" or "reliability" prong of the Aguilar-Spinelli test had to be met and it was not. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). After submission of this case, the Supreme Court abandoned the standard two-prong test of Aguilar-Spinelli in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). While stating that "veracity," "reliability" and "basis of knowledge" are highly relevant in determining an informant's report, the Supreme Court said they are no longer separate and rigid requirements which must be met in determining probable cause. The "totality of the circumstances" approach which includes a consideration of the "veracity," "reliability" and "basis of knowledge" is now the standard to be used in evaluating probable cause in a commonsense, practical fashion.

In the instant case none of the four unsworn statements contain explicit statements of "veracity." However, three of the statements--Gatlin's, Montgomery's, and Marbut's--fall into the "identified bystander" or witness category in which courts have found an inherent reliability. All three simply describe events witnessed by disinterested citizens, not actual "informers" in the sense of undercover officers or those involved in criminal activity. They are all based on direct, personal observation or first-hand knowledge. Even under pre-Gates law these statements would be found to be reliable. See Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972); United States v. McEachin, 670 F.2d 1139 (D.C.Cir.1981) and cases cited therein at n. 4; United States v. Bell, 457 F.2d 1231 (5th Cir.1972).

Pollard's statement does not fit quite so easily into the bystander category. However, Pollard's statement relates a conversation with appellant which details the crime as far as exact location, time of day, method, and result. The only difference was the date--appellant told Pollard he...