Boyle v. State

Decision Date04 October 1989
Docket NumberNo. 69743,69743
Citation820 S.W.2d 122
PartiesBenjamin Herbert BOYLE aka Mr. Whipple, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DUNCAN, Judge.

The appellant, Benjamin Herbert Boyle a/k/a Mr. Whipple, appeals his conviction of capital murder obtained pursuant to V.T.C.A., Penal Code, § 19.03(a)(2). The death penalty was imposed by the trial court after the jury answered affirmatively the special issues submitted under Article 37.071(b), V.A.C.C.P. Appellant brings twenty-nine points of error before this Court. We reverse the judgment of conviction.

Appellant initially complains that a substantial portion of evidence which was introduced against him in the course of his capital murder trial should have been excluded by the trial court as it was obtained by exploitation of his illegal arrest. 1

On October 15, 1985, the naked body of Gail Lenore Smith, the deceased, was discovered by a passing truck driver, Donald Ray McKay, concealed in a brushy area approximately one half mile north of the Canadian River Bridge on Highway 287, fourteen miles north of Amarillo in Potter County, Texas. The deceased had been taken by her step-brother and sister-in-law, John and Milagros Wertz, on October 14, 1985 at approximately 4:00 p.m. to a rest stop outside Fort Worth, Texas. The apparent plan was that Smith would obtain a ride from a trucker going to Amarillo so that she could visit her mother.

Both John Wertz and Milagros testified that after the deceased left their vehicle, they watched as she approached an individual, later identified as appellant, and eventually entered his cherry red Peterbilt tractor-trailer. The deceased had requested that the Wertzes record the license tag number, but they were unable to accomplish this. However, they were able to later give a complete description of the truck, which included the name of the company owning the vehicle inscribed on the cab doors: "JEWETT SCOTT Truck Line, Inc., Mangum, Oklahoma."

This information later proved to be invaluable, because once the Wertzes were informed of Gail Smith's death they were able to apprise the investigating officers of their observations. The homicide investigators were then able to trace the tractor-trailer to the appellant, and after contacting the Jewett Scott Truck Lines in Oklahoma, determined the ultimate destination of appellant as Diboll, Texas, where he was to pick up a load at Temple Industries.

At this juncture, the Amarillo investigating officers knew that a naked body had been found, bound with common duct tape, and hidden in a brushy area fourteen miles outside the city. From the details supplied by the family of the deceased, they were also aware that Smith was last seen boarding the cherry red Peterbilt tractor-truck driven by appellant outside Fort Worth, Texas on Highway 287. By the time this information coalesced it was October 17, 1985.

The record of the motion to suppress hearing makes it clear that as of October 17, 1985, the police lacked sufficient probable cause to conduct an investigatory search or to procure the issuance of an arrest warrant for the appellant. Nevertheless, utilizing as authority Articles 20.11 and 24.15, V.A.C.C.P., 2 Sgt. Walter Yerger of the Amarillo Police Department acquired the issuance of a grand jury material witness attachment on October 17, 1985, signed by a district judge, for the appellant.

With the knowledge that appellant would be arriving in Diboll, Texas, a teletype was dispatched to the Diboll Police Department with instructions to arrest the appellant and secure the truck until the arrival in Diboll of the Amarillo entourage consisting of Sgt. Yerger, Corporal Joe Allen and Modeina Holmes all of the Amarillo Police Department; James Farren of the Potter County District Attorney's Office, and Texas Ranger Ronnie Griffin.

In the early evening hours of October 17, appellant was arrested pursuant to the grand jury attachment while he was attending to his truck at a Diboll convenience store. In accordance with the Amarillo instructions, the appellant was arrested, incarcerated and held for the Amarillo officers. The truck was secured and held at the location where the arrest occurred.

The Amarillo team left Amarillo at approximately 9:00 p.m. on October 17, 1985, and arrived in Diboll at 7:00 a.m. on October 18, 1985. Immediately upon arrival in Diboll, Sgt. Yerger conducted an interview with the appellant which lasted between thirty to forty minutes. Prior to the commencement of this custodial interrogation, appellant had executed a form which indicated that he had been administered the full panoply of Miranda warnings. After this interview, Sgt. Yerger accompanied appellant to an arraignment before a local justice of the peace on the material witness attachment at 8:33 a.m. Appellant was immediately returned to the Diboll jail where he was again Mirandized by Sgt. Yerger. During the interim, appellant executed a consent to search form for the truck at the behest of Yerger.

By 8:45 a.m., Detective Holmes and Corporal Allen commenced what was to be a thorough and complete investigatory search of the cab and sleeper area of the Peterbilt tractor, and concluded their search at 6:00 p.m. the evening of the 18th. The record reflects that Sgt. Yerger received a 7:45 p.m. teletype that an arrest warrant had been issued at 5:24 p.m. for appellant for the offense of capital murder in Amarillo. 3 Appellant was transported to Amarillo and ultimately gave a statement denying his guilt on the 19th of October as well as his consent to the police obtaining hair and blood samples. 4

In appellant's first ground of error he argues essentially that his arrest pursuant to the material witness attachment was illegal in that the law enforcement officers lacked probable cause to either arrest him or search his truck, and that any consent to the warrantless search of the truck was obtained through an exploitation of his illegal arrest in violation of the Fourth and Fourteenth Amendments to the Federal Constitution and Art. I, Sec. 9 of the Texas Constitution. He asserts that his arrest on the material witness attachment was merely a "pretext arrest" to gain his permission to search the truck which they could not have done by following the proper channels consistent with the constitutional mandates.

Responding to the appellant's first point of error, the State tersely asserts that the appellant's arrest in Diboll was not a "pretext" because it obtained a subpoena and attachment for the appellant pursuant to Article 20.10, V.A.C.C.P and Article 20.11, V.A.C.C.P. In this regard, the State submits: "In the case at bar the State complied with the requirements of the Code of Criminal Procedure." The record, however, compels a contrary conclusion.

During the motion to suppress hearing the appellant introduced into evidence a sworn affidavit of an assistant Potter County district attorney. The affidavit claims that the appellant "is a material witness for the State in a Grand Jury investigation...." It continues by claiming that "it is necessary to require bail of the said ... [appellant] to assure his appearance in court, as provided in Vernon's Ann. C.C.P. Art. 24.15 [emphasis added]." 5 The affidavit concludes with a prayer for the issuance of an attachment. An attachment was issued based upon the sworn statements in the affidavit. Bond was set in the attachment at $50,000.

Reading Article 24.15, supra, which is expressly relied upon by the State to authorize the attachment, the defects in the process are readily apparent. First, Article 24.15, supra, is restricted to "any witness who resides in the county...." Id. It is undisputed that the appellant was not a resident of Potter County.

Second, before an attachment for a resident witness can issue under Article 24.15, supra, the State's attorney must file a sworn application stating "that he has good reason to believe and does believe that such witness is about to move out of the county." Id. It is apparent that such a sworn claim must be made before an attachment can issue and equally apparent why one was not made in this case. Thus, in addition to Article 24.15, supra, being inapplicable, it was understandably not complied with either.

Third, Article 24.15, supra, does not authorize the issuing magistrate to set a bond to insure a witnesses appearance. It only authorizes the imposition of a fine if the witness fails or refuses to obey the subpoena.

Article 20.11, V.A.C.C.P., does authorize the issuance of a subpoena or an attachment for an out-of-county witness and provides that "an attachment shall command the sheriff or any constable of the county where the witness resides to serve the witness, and have him before the grand jury at the time and place specified in the writ." Id. The attachment in this case does not specify when the witness was to appear before the grand jury. See also: Article 24.11, V.A.C.C.P. 6

Other than the exception authorized in Article 24.15, supra, it is elementary that an attachment for a witness is not authorized until the witness fails to obey a properly served subpoena. This is a prerequisite for the attachment of a resident witness. Article 24.12, V.A.C.C.P. It is also a prerequisite for the attachment of an out-of-county witness. Article 24.22, V.A.C.C.P. In an unrelated claim of error, in Willis v. State, 626 S.W.2d 500 (Tex.Cr.App.1982), Judge W.C. Davis, writing for a panel of this Court, stated: "Where a...

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