Dancy v. State

• Decision Date: 18 March 1987
• Docket Number: No. 262-85,262-85
• Citation: 728 S.W.2d 772
• Parties: Maurice Eugene DANCY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 772

728 S.W.2d 772

Maurice Eugene DANCY, Appellant, v. The STATE of Texas, Appellee.

No. 262-85.

Court of Criminal Appeals of Texas En Banc.

March 18, 1987.

Mary Anne Wiley, G. Thomas Cannon, Ralph H. Brock, Lubbock, for appellant.

John T. Montford, Former Dist. Atty., Jim Bob Darnell, Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of murder. The convicting jury assessed his punishment at life imprisonment. On appeal the conviction was affirmed in an unpublished opinion by the Court of Appeals. Dancy v. State (Tex.App.--Amarillo, No. 07-81-0057-CR, Dec. 31, 1984).

On appeal appellant contended, inter alia, that certain items obtained (1) as a result of his illegal arrest and (2) from his apartment pursuant to a search warrant issued without probable cause were improperly introduced into evidence against him. The Court of Appeals overruled both of these grounds of error (2nd and 3rd) and held that the trial court properly denied, after a hearing, appellant's motion to suppress evidence. We granted the second and third grounds of review in appellant's petition for discretionary review to consider the correctness of the above holdings of the Court of Appeals.

On August 21, 1979, the deceased, Claude Ventry Bridges, a doctoral candidate at Texas Tech University, was to complete the final day of his qualifying examinations for his doctorate degree. At lunch time a professor and a fellow student became concerned because Bridges had failed to appear for the exams, and decided to stop at Bridges' home to check on him. They found the front door of the house wide open, and upon entering the house, they found Bridges' body lying face down. The autopsy revealed that Bridges died as a result of a hard blow to the neck which fractured his larynx causing him to suffocate.

Outside the window through which entry into the deceased's house was gained the police found a red letter jacket with a "C" affixed to it, as issued by the Coronado High School in Lubbock. A large green comb was found near the deceased's body. A book entitled Theory in Practice was obtained by the police at the scene because of an apparent shoe imprint on it. The deceased's wife was unable to identify either the jacket or the comb.

On August 22, 1979, three television stations in Lubbock cooperated with the police by exhibiting the jacket and comb on newscasts about the homicide. Viewers were requested to contact police if they had any information concerning the items or the owner or owners of the items.

About 4:30 p.m. on August 22nd during a discussion at the police station about the jacket Detective Tommy Wilbanks told Sgt. Charley Park that he knew that appellant Maurice Dancy lived in the area where the homicide occurred, that Dancy had gone to Coronado High School and had a Coronado jacket. It was recognized that there were a number of such jackets in Lubbock. Later in the afternoon Wilbanks produced a photograph of appellant in such a jacket apparently taken when appellant had been booked in jail in February 1979. The address of appellant furnished by Wilbanks was not correct, however. ¹ At the time there were no leads, no suspects, but Park testified they intended "to try to locate Mr. Dancy and talk with him."

Detective Joe Nevarez testified that shortly after the television newscasts about 6:30 p.m. on August 22, 1979 he received a telephone call at the Homicide Division. The caller requested to speak to Detective Bill Townley. Upon being advised that Townley was "off duty," the caller hung up. A few minutes later another call was received and the caller again asked for Townley. When told that it was Townley's day off, the caller asked for Detective Ralston and was told Ralston had gone home for the day. The caller inquired how these officers could be reached as the caller needed to talk to one of them. Nevarez told the caller he would try to locate one of the officers and have him call. The caller gave a telephone number where he could be reached, and in response to Nevarez's inquiry identified himself as Maurice Dancy and gave an address where he could be found. Nevarez transferred the call to Sgt. Park, who briefly talked to the caller and conveyed the information to Ralston at his home.

Detective Goolsby picked up Ralston and they drove to the address given, arriving about 7:30 p.m. on August 22nd. Ralston had had previous contact with appellant when he (Ralston) had been looking for a member of the appellant's family, Sam Dancy. When Ralston knocked on the door of the residence, appellant answered. There were one or two white males inside the house. Ralston advised appellant he had been informed appellant "wanted to talk to me about something," and asked if appellant would come out to the car, an unmarked police vehicle. At the car appellant told Ralston "he had seen on TV that they had a coat, and he thought it might have been his, because his had been stolen a day or two before that." The jacket was at the police station. Ralston informed the appellant they needed to go to the police station to talk about the jacket which appellant had reported stolen. Appellant agreed. Ralston testified appellant voluntarily got into the police vehicle, that he did not place appellant under arrest or handcuff him, or read to him any Miranda warnings. On the way to the station Ralston related they just "shot the breeze" and there was no conversation about the jacket or the offense with appellant by him or Goolsby. Ralston, with the burglary detail, sought only to bring the appellant to the station. He was not actively involved in the investigation. At the police station he took the appellant to the Detective Division and then went home.

Upon arriving at the police station, appellant was given his Miranda warnings at 7:52 p.m. by Detective Daniel. According to Daniel appellant stated he understood his rights and that he indicated he wanted to talk to the officers; that he had come "down there" to talk about the coat that the police had. Appellant was not told he was under arrest. Daniel testified appellant identified the jacket in question as his because of a torn sleeve and stated "because his jacket was missing, and that is the reason he came to the Police Department, to see the jacket." Appellant then was shown a green comb, and stated he had such a comb "which looked like the comb that we had."

Appellant was asked to give a hair sample to the police and Detective White, who was present, stated appellant gave the sample freely and voluntarily. White noticed that appellant's knuckles appeared to be skinned and Detective Daniel observed what appeared to be red stains on appellant's tennis shoes and thought the stains could be blood (later shown to be red paint). When Daniel asked to look at the shoes, appellant took them off and gave them to Daniel freely and voluntarily. They were handed to Officer Riemer, who compared the shoes with the print on the book found at the homicide scene. It was then determined according to White that the print "could have been made by the shoe."

At this point about 8:30 p.m. White and other officers determined they had probable cause to obtain a warrant for appellant's arrest and contacted the district attorney's office for legal assistance in obtaining an arrest warrant and a search warrant. According to the officers, appellant, prior to this time, was not placed under arrest and he did not request or attempt to leave. When asked, White and Daniel stated that at this point (8:30 p.m.) they would not then have permitted appellant to leave because they feared they might never find him. The items in question were already in possession of the police.

At approximately the time (8:30 p.m.) the officers determined they had probable cause for arrest, appellant exercised his rights and requested to contact his attorney. Appellant was immediately furnished a telephone and called Attorney Mackey Hancock. Attorney Hancock testified as the only defense witness at the suppression hearing. He testified that appellant called him and commenced talking about the letter jacket that was shown on television, that he "went to pick it up, claimed it, or something to that effect," indicated he was talking to the police at the Lubbock Police Department. Asking questions Hancock elicited enough information to know "he was either under arrest for murder, or being held for questioning on the murder...." He advised appellant to terminate any interview.

Attorney Hancock also testified he arrived at the police station about 9 p.m. and learned appellant had been transferred to the county jail. Upon arriving there at 9:30 p.m. Hancock found appellant in "jail whites" at the booking area. They talked and discussed financial matters and Hancock advised the appellant to seek a court-appointed attorney; and repeated the advice earlier given and explained the charge on which appellant was being booked. Hancock did not stay for the arraignment. He stated he arrived home about 10:30 p.m.

Detective White testified appellant was booked at approximately 10 or 10:30 p.m. after being notified by the district attorney's office an arrest warrant had been issued. The record shows the arrest warrant was issued at 10:52 p.m. by District Judge Shaver, acting as a magistrate. Appellant was arraigned at 11 p.m. by a Justice of the Peace. Detective Daniel testified that once the officers believed they had probable cause to arrest they acted as expeditiously as possible in procuring one.

Appellant in his petition for discretionary review contends the Court of Appeals erred "in holding that appellant was not under arrest when items were seized from his persons and such items were admissible in violation of appellant's constitutional and statutory rights."

While the "items" are referred to...