Bell v. State

• Decision Date: 19 March 1986
• Docket Number: No. 68989,68989
• Parties: Walter BELL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 780

724 S.W.2d 780

Walter BELL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 68989.

Court of Criminal Appeals of Texas En Banc.

March 19, 1986.

Rehearing Denied July 9, 1986.

Douglas M. Barlow, Beaumont, for appellant.

James S. McGrath, Dist. Atty. & John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder. ¹ See V.T.C.A. Penal Code, § 19.03(a)(2). The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071(b), V.A.C.C.P. Appellant brings fifteen grounds of error before this court. We will affirm.

In his sixth ground of error appellant challenges the legality of his warrantless arrest, and the admissibility of the fruits of that arrest. Grounds of error seven and eight challenge the admission into evidence of appellant's first and second confessions, respectively, on the grounds that they were not shown to be made voluntarily. Appellant's motion to suppress his two confessions and items taken from his home was overruled by the trial court. A rendition of the facts surrounding the arrest and the confessions is necessary to evaluate appellant's claims. The three grounds of error are addressed in this discussion because they are interrelated.

On Friday morning, July 19, 1974, the bodies of Ferd and Irene Chisum were found in the bathtub of their home in Port Arthur. They were owners and operators of a business known as the Appliance Service Center. The bodies were discovered after the Chisums failed to report to their business and an employee went to investigate. Virtually the entire following sequence of events, concerning what occurred over the weekend following discovery of the bodies, was described at trial by Calise Blanchard, an investigator with the Jefferson County District Attorney's Office.

In the early afternoon of July 19, Blanchard was told that appellant was one of three recently fired employees and that there was some animosity between appellant and Ferd Chisum over the firing. Blanchard and investigator Pat Hayes of the District Attorney's Office were unable to find appellant at his last known address, and before proceeding to the address of another former employee, they were dispatched by radio to the Sabine National Bank.

Arriving there at about 4:00 p.m., they learned the details of an attempt to cash a check on the Chisum's account and received a description of the individual who made the attempt. The individual, who had a companion, was a black male in his early twenties, used the name "Bobbie Williams," and wore a green football jersey bearing the number "12." The check initially aroused suspicion of forgery because it was filled out with the numbered amount "600" and the written amount "six" dollars, and the signature on the check did not match the file signature. The information concerning the attempted check cashing was broadcasted over the police radio.

Blanchard and Hayes traced the taxi used by the forgery suspect to the "Soul Kitchen," where they asked if anyone had seen the person described by the bank employees. The information on the police radio broadcast was not publicly known, so the people at the Soul Kitchen would not have known why the police were looking for the individual seen at the bank. No one at the restaurant acknowledged having seen the suspect.

At this time, the police did not know if appellant, whom they had been looking for earlier, and "Bobbie Williams" were the same person. At approximately 12:30 a.m. on the 20th, however, a man named Donald Brown appeared at the police station with a photograph of three men. He identified the person in the green jersey being sought by the police as Walter Bell, whom he personally knew. The police now knew that one of the recently fired suspects and the man in the jersey were the same person, namely appellant.

Brown told Blanchard and the police that they just missed appellant when they went to the Soul Kitchen, and that Brown had seen appellant nearby. Brown told Blanchard that he had warned appellant that the police were looking for him. Brown also told Blanchard that he had just left appellant at the Satellite Bar, and that he could still be found there. Blanchard now believed that he had probable cause to arrest appellant, and thought that he did not need a warrant because he knew that the bars closed at 1:00 a.m., when appellant's whereabouts would again be unknown. He immediately dispatched officers to the Satellite Bar, and appellant was subsequently arrested on Houston Avenue outside of the bar.

Blanchard gave appellant the warnings required under Art. 38.22, V.A.C.C.P., and informed him that he was under suspicion for forgery and the murder of the Chisums. Appellant denied any involvement, but gave Blanchard written permission to search his residence. Officers were dispatched there, and recovered the jersey, the male and female ends of an extension cord similar to a portion of a cord previously found on the floor of the Chisums' bathroom, and a plastic container of coins taken from the Chisums' home.

At approximately 3:00 a.m. Blanchard confronted appellant with the results of the search and appellant orally confessed to the murders. Between 3:55 and 4:45 a.m. Blanchard took a written confession from appellant, and again advised appellant of his rights; appellant signed the confession immediately thereafter. Appellant was then examined by a physician, who found no physical abuse or damage.

Blanchard and Hayes prepared complaints and warrants charging appellant with capital murder. Appellant was presented to a Justice of the Peace, received a Magistrate's warning, and the complaints and warrants were signed. After processing of appellant for fingerprints and photographs, Blanchard took appellant to breakfast and returned after sunrise. He went out with appellant on an unsuccessful attempt to find a knife which appellant mentioned in his confession, then appellant was returned to jail.

For the remainder of the day, Saturday, July 20, the investigation continued while appellant remained in custody. The record does not reflect any contact between appellant and the investigating officers. On Sunday morning, appellant was allowed to visit with his mother and step-father. Blanchard was awakened around noon on that Sunday by a call from the police station which indicated that appellant wished to talk to him again. Blanchard ate lunch, then went down to the jail, and appellant told him, "you are going to be mad at me because I didn't tell you the truth." Appellant was taken from the jail to the District Attorney's office where he was again issued warnings. Appellant then gave a second written confession in which he admitted robbing the Chisums and raping Mrs. Chisum. Additionally, he implicated Sheperd Watson in the crime.

After the second written confession was taken a search of appellant's residence was executed with appellant's assistance, and several incriminating items of evidence were discovered. Earlier in the afternoon another search of appellant's residence had disclosed other incriminating items. All searches of appellant's residence were conducted with his consent.

On Monday the 22nd, appellant agreed to go to the Chisum house and point out the location of some checks that police officers were searching for. Appellant pointed to a book in the study which contained the checks. Blanchard testified that appellant then made a complete oral confession and reenacted the crime. Appellant's left thumbprint was lifted from a can of Hi-C juice in the Chisum kitchen.

In his sixth ground of error appellant argues that his arrest was illegal and that all evidence and confessions that were fruit of the illegal arrest should have been excluded at trial. He contends that no exigent circumstances existed to relieve the State of its statutory duty to obtain a warrant before arresting him, citing Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). He correctly asserts that the burden is on the State to show that the arrest was within an exception to the warrant requirement. See id., and Wilson v. State, 621 S.W.2d 799 (Tex.Cr.App.1981).

The police did have probable cause to arrest appellant for murder after he was identified in the photograph by Donald Brown. They knew then that appellant knew the Chisums, that he had a motive to do them wrong because of his recent firing, that there was some animosity between appellant and the Chisums, and that appellant was the man who attempted to dispose of some of the fruits of the crime shortly after the murder. The exigent circumstances test of Art. 14.04 V.A.C.C.P., however, was not satisfied.

Art. 14.04, supra, states:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused." (Emphasis added.)

Although Blanchard testified that he could not have obtained a warrant before the bar closed and did not know where to find appellant after the bar closed, there is no evidence that appellant was about to escape or that the officers thought he was about to escape. Brown told the police that he had warned appellant earlier in the day that the police were looking for him, but appellant was still in the vicinity at a local bar at midnight. "It is the information that an escape is imminent which dispenses with the necessity of a warrant of arrest." Bain v. State, 677 S.W.2d 51, 56 (Tex.Cr.App.1984), quoting Rutherford v. State, 104 Tex.Cr.R. 127, 283 S.W. 512, 514-515 (Tex.Cr.App.1926). Because of the absence of the required exigent circumstances, we hold that the arrest was improper.

Having so concluded, we must...