Gilbreath v. State, 39505

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation412 S.W.2d 60
Docket NumberNo. 39505,39505
PartiesFreddie Ray GILBREATH, Appellant, v. The STATE of Texas, Appellee.
Decision Date01 February 1967

C. C. Divine, Houston, for appellant.

Carol S. Vance, Dist. Atty., Richard M. DeGuerin and John Gilleland, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is felony theft; the punishment, two years confinement in the Texas Department of Corrections.

Notice of appeal was given on November 23, 1965, prior to the effective date of the 1965 Code of Criminal Procedure.

J. H. Goddard testified tht on February 11, 1965, he was the owner of a 1960 Chevrolet having a value in excess of $50.00. He related that on that date his automobile, bearing 1965 Texas license plates and with the title certificate in the glove compartment, was taken without his consent or permission from a location at the Calvary Lutheran Church in Harris County, Texas. The theft was reported to the Harris County Sheriff's Office on the same day.

Harris County Deputy Sheriff Hubbell testified that on February 21, 1965, while on an investigation with Deputy Sheriff Shipley, he observed the 1960 Chevrolet in question parked in front of the appellant's residence. Nothing that the automobile bore 1964 Texas license plates known to have been stolen, and determining after further investigation that the license plates had not been issued for the 1960 Chevrolet, Officer Hubbell approached the appellant at his home and inquired about the automobile.

The appellant claimed he purchased the automobile from Charles Dale Blevins, his co-indictee, and exhibited to the officers a title certificate with an assignment of title and a bill of sale allegedly signed by J. H. Goddard. Officer Hubbell testified that upon request appellant agreed to accompany him and Officer Shipley to the Goddard home, and this is confirmed by the appellant in his testimony. At the Goddard home the complaining witness identified his stolen automobile and denied the signatures on the bill of sale and assignment of title.

Hubbell related that as a result of a conversation with the appellant at that time, the appellant admitted that he and Blevins had stolen the Chevrolet, and in the same conversation he revealed the location of the blow out rings and the 1965 license plates that had been on the automobile at the time it was stolen. The location of these items was unknown to the officers and this statement led to their recovery.

The following day, while in custody, the appellant gave a written confession concerning the theft.

Appellant insists that his arrest without a warrant was illegal and therefore both his oral and written confessions were inadmissible in evidence over his objections.

It is not clear from the record just when the arrest was effected. The appellant testified that he and Blevins were arrested after he had led the officers to the location where they recovered Goddard's 1965 license plates from Blevins' automobile. These events occurred after the appellant's 'oral confession'. Whether the accused is or not under arrest is to be determined from the sufficiency of the facts to reasonably create the impression on his mind that he is under arrest. De Lira v. State, 164 Tex.Cr.R. 194, 297 S.W.2d 953; Branch's P.C., Sec. 85, p. 84, 2nd Edition.

In Rolan v. State, 170 Tex.Cr.R. 88, 338 S.W.2d 457, this Court held that statements made by the appellant when interviewed by the Sheriff during a theft investigation were properly admitted in a prosecution for felony theft, even though the interview after 45 minutes was terminated by the arrest of the appellant.

Ssuming the arrest occurred at the Goddard home prior to any oral confession, the officers knew at that time that the automobile was stolen, that it bore license plates stolen at another time and place, and that the owner had denied his signatures on the bill of sale and assignment of title in possession of the appellant. With such information...

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8 cases
  • Amores v. State, 0795-89
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 18, 1991
    ...would have believed that he was not free to leave' "); Melton v. State, 790 S.W.2d 322, 329 (Tex.Cr.App.1990); Gilbreath v. State, 412 S.W.2d 60, 61 (Tex.Cr.App.1967) ("Whether the accused is or [is] not under arrest is to be determined from the sufficiency of facts to reasonably create the......
  • Moore v. State, 68871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 9, 1985
    ...but, instead, relies upon the testimony of a witness who observed the signing, then this statute is inapplicable. Gilbreath v. State, 412 S.W.2d 60 (Tex.Cr.App.1967). In this instance, Ott's direct testimony made the statute Appellant's ground of error is overruled. IV. DID THE STATE CORROB......
  • Troncosa v. State
    • United States
    • Court of Appeals of Texas
    • February 15, 1984
    ...from the sufficiency of the facts to reasonably create the impression in the accused's mind that he is under arrest. Gilbreath v. State, 412 S.W.2d 60, 61 (Tex.Cr.App.1967). Whenever a police officer accosts an individual and restrains his freedom to walk away he has seized that person. Ter......
  • Latham v. State, 12-02-00351-CR.
    • United States
    • Court of Appeals of Texas
    • January 30, 2004
    ...surrounding the incident. Wilson v. State, 943 S.W.2d 43, 45 (Tex.App.-Tyler 1996, pet. ref'd) (citing Gilbreath v. State, 412 S.W.2d 60, 61 (Tex. Crim.App.1967)). Application of the person standard in the context of an arrest prevents a conviction based on a less intrusive type of seizure.......
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