Farmah v. State

• Decision Date: 15 June 1994
• Docket Number: 623-90,Nos. 622-90,s. 622-90
• Citation: 883 S.W.2d 674
• Parties: John Aruner FARMAH, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 674

883 S.W.2d 674

John Aruner FARMAH, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 622-90, 623-90.

Court of Criminal Appeals of Texas En Banc.

June 15, 1994.

James M. Seabolt, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Roger A. Haseman & Vic Wisner, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

A jury convicted appellant of aggravated sexual assault and assessed punishment at thirty years imprisonment. The trial court found appellant guilty of aggravated robbery and assessed punishment at five years imprisonment. The Court of Appeals affirmed both convictions. Farmah v. State, 789 S.W.2d 665 (Tex.App.--Houston [1st] 1990). This court granted appellant's petition for discretionary review. ¹

The complainant was abducted in West University at gunpoint by two males who forced her into a car driven by a third male. The three men sexually assaulted and robbed her. She reported the crime and described the perpetrators as black males. She did not know their names and could not give a license plate number of the car. She did, however, describe the car as a late 60's or early 70's model Buick with a white top over a maroon bottom.

Officer Johnson, of the West University Police, was assigned to investigate the case. Eight days after the sexual assault, he received information from a United Parcel Service driver who said that when he heard about the sexual assault, he realized that he had witnessed the abduction. The driver wrote down the license plate number of the car in which the complainant was forced into and gave it to Johnson. The driver's description of the car and his claim that two black males were involved was consistent with the information given by the complainant.

After receiving the license plate number, Johnson determined the registered owner of the car. When contacted, the registered owner said the car was sold several years before but did not have the buyer's name. Johnson entered the information regarding the license plate number and car description as a vehicle wanted in connection with the abduction and sexual assault into the National Crime Information Center (N.C.I.C.) computer.

The day after the N.C.I.C. entry, a police dispatcher informed Johnson that a Houston Police Department officer, Horn, reported that he had the car and an "accompanying person." Johnson went to the location and saw the car bearing the noted license plate number. Horn was detaining appellant until Johnson arrived. Johnson took appellant into custody after brief questioning. Appellant claimed to own the car but was unable to give a fixed address. Johnson stated he was afraid to release appellant while he secured an arrest warrant because appellant knew he was a suspect in a sexual assault investigation and would not give a fixed address, and Johnson knew of no ties appellant had to Harris County. He believed it would have been irresponsible to release appellant at that time and took him to the police department.

During the motion to suppress hearing, appellant testified that he was sitting on the back of a broken down car when Horn pulled up behind him, got out of his car, spoke to appellant, then got back into his car. Horn got out of his car a second time, handcuffed appellant and placed him in the back of the police car. Shortly thereafter, Johnson arrived and talked to appellant. Johnson then took appellant to the West University Police Department. Appellant testified that he told Johnson that he was driving a 1974 two-door white and maroon Buick with license plate number 783 QVE, and the car was not registered in his name.

Johnson was the only other witness called at the suppression hearing. After testifying regarding the case investigation and arrest, he described the activities which took place after he arrested appellant. When he arrived at the police department, he read appellant his Miranda ² rights and talked with him for about two hours. They discussed the case and appellant gave additional facts that led Johnson to believe that appellant was involved in the assault. The complainant could not identify appellant from a photo spread. Johnson, however, told appellant that she had identified him. During the process, appellant was given food, drinks, and was not denied any requests. He was not promised anything in exchange for his written statement which was given three to four and one-half hours after arriving at the police station. Johnson testified that the statement contained the proper warnings, he read appellant the warnings earlier and repeated them when he read the statement. Appellant acknowledged that he understood the warnings and initialed each element of the warnings on the statement.

After the motion to suppress hearing, the trial court entered findings of fact and conclusions of law. The judge found the following: appellant possessed the described car; he had no address, employment or ties to the county when taken into custody; Johnson had reason to believe that appellant owned the car used and met the general description, i.e. a black male, of a sexual assault suspect; neither Horn nor Johnson had a warrant; appellant confessed four hours after his arrest; appellant received his warnings both orally and in writing before confessing; police adequately fed and cared for appellant before he confessed; the written statement was taken after Johnson falsely represented that the complainant identified appellant; the false representation was not calculated to produce an untruthful confession; and appellant voluntarily signed the confession.

The trial court concluded that Johnson had probable cause to place appellant in custody, and the lack of information concerning appellant and the distinct possibility that he would flee once notified that he was a suspect in an aggravated sexual assault acted as exigent circumstances which justified a warrantless arrest under Art. 14.04, V.A.C.C.P. The court also found that appellant gave his confession after knowingly, intelligently and voluntarily waiving his rights.

On appeal, appellant contended that the confession was a given result of an illegal arrest and was not voluntarily given. The court of appeals first considered whether the arrest was proper under Art. 14.04. That court held that the officers had satisfactory proof that appellant had committed a felony: appellant was apprehended a day after the U.P.S. driver gave Johnson the licensed plate; Horn received information from the dispatcher regarding the sexual assault by black males; the car appellant was driving was not registered to him and was the car involved in the sexual assault; the fact finder could infer that Horn, after speaking with the dispatcher, was justified in detaining appellant under the circumstances; and appellant matched the physical description given by the complainant.

The court also held that there was satisfactory proof that appellant was about to escape since police apprehended appellant one day after they received information regarding the license number, appellant was unable to give an address, and he was also informed that he was a suspect in an aggravated sexual assault case. Given the facts, the court of appeals held that the arrest was justified under Art. 14.04.

The court also considered appellant's claim that the illegal arrest tainted the subsequent confession. The court noted that police gave appellant his warnings several times and characterized Johnson's statement to appellant regarding the complainant's identification as an intervening circumstance that may have caused appellant to confess. Trickery and deception would not render a confession involuntary, according to the Court of Appeals, unless calculated to produce an untruthful confession. Also, the court held that there was no police misconduct. The court concluded that the warnings and absence of flagrant police misconduct outweighed the presence of an intervening circumstance and the four-hour lapse between the arrest and the confession.

In his petition, appellant argues that the first arrest by Horn was improper because there was no evidence of probable cause in that the State did not call Horn to testify. Appellant also argues that the second arrest was invalid because there is no evidence that Horn or Johnson had proof appellant had committed a felony or was about to escape.

Initially, we will discuss appellant's claim that simply because Horn did not testify, there was no evidence regarding Horn's knowledge about the offense or appellant. Johnson related the information given N.C.I.C. and the notification by the dispatcher that the car had been stopped. Appellant's counsel objected to the information about the stop because it was hearsay.

Reasonable inferences arising from the evidence may be considered in determining whether probable cause existed. Gish v. State, 606 S.W.2d 883 (Tex.Cr.App.1980), Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). Johnson testified that he entered the information about the car in the N.C.I.C., and was notified a day later that the car had been stopped. He also testified that when he arrived at the described location, a Houston officer was detaining appellant. From the testimony in the record, we find that the trial court could reasonably infer that Horn stopped appellant based on the information which was entered in the N.C.I.C., specifically, that the car was connected with an abduction and sexual assault. Compare Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986) (facts in the search warrant affidavit did not support an inference that drugs were kept on premises to be searched).

The next issue concerns whether Horn's arrest was proper. The record clearly shows that Horn arrested appellant before Johnson arrived at the scene. ³ Thus, Horn had to have sufficient information to justify...