Gilmore v. State

• Citation: 666 S.W.2d 136
• Decision Date: 24 August 1983
• Docket Number: No. 07-81-0267-CR,07-81-0267-CR
• Parties: Vernon Ray GILMORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 136

666 S.W.2d 136

Vernon Ray GILMORE, Appellant, v. The STATE of Texas, Appellee.

No. 07-81-0267-CR.

Court of Appeals of Texas Amarillo.

Aug. 24, 1983.

Discretionary Review Refused Jan. 25, 1984.

Hurley, Sowder, Magness & Hurley, Daniel W. Hurley, Lubbock, for appellant.

John T. Montford, Dist. Atty., Jim B. Darnell, Asst. Dist. Atty., Lubbock, for appellee.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

BOYD, Justice.

Appellant Vernon Ray Gilmore brings this appeal from his conviction of the offense of murder and the consequent court assessed punishment of ninety-nine years confinement in the Department of Corrections. For the reasons hereinafter expressed, we reverse the judgment of conviction.

Appellant presents eight grounds of error for our review. In his first ground, he argues that the trial court erred in refusing to grant his motion for instructed verdict of acquittal because he contends the evidence was insufficient to support the conviction. He asserts, in his second ground of error, that the trial court erred in failing to grant his motion to suppress certain items taken by the police from a motel room without authority of a search warrant since, he contends, the State failed to show by clear and convincing evidence that he had consented to this search.

In his third ground, appellant attacks the lawfulness of his arrest. Arguing that the arrest was unlawful, he attacks the trial court's decision to permit the introduction of evidence obtained subsequent to the arrest on the grounds that the evidence was a fruit of an illegal arrest and search. Appellant's fourth ground concerns the trial court's decision to admit into evidence certain newspaper accounts which were found in appellant's Seattle motel room. He argues that the articles contained impermissible hearsay and that their introduction violated his constitutional right of confrontation. He further contends that these articles were highly prejudicial to his case and that he was thereby denied a fair trial.

In his fifth ground of error, he asserts that the trial court erred in refusing to grant his motions for mistrial after the State elicited testimony of extraneous offenses from witness Sue Bryan and witness Willis Frankenfield. Appellant argues in his sixth ground of error that the trial court erred in admitting into evidence certain blood samples taken from the body of the deceased because there was allegedly a material break in the chain of custody of the blood samples.

Appellant's seventh ground of error attacks the trial court's decision to permit witness Tom Joyce to testify at the trial. He reasons that the trial court erred in permitting Joyce to testify because the court knew that Joyce would plead the Fifth Amendment on relevant questions which the appellant would want to ask him. The trial court's action, appellant contends, denied him his right of confrontation. Finally, in his eighth ground of error, the appellant alleges that the trial court erred in instructing the jury on the law of parties because there was no evidence to raise the issue of parties.

A brief discussion of the facts of this case reveals that on November 7, 1980, the body of Richard Grier Luster was discovered in a caliche pit east of Lubbock. Luster had died as a result of bullet wounds to his head and chest, both fired at close range. The coroner estimated that Luster died sometime between the afternoon of November 5, 1980 and the early morning of November 6, 1980. Appellant, who had been in the company of Luster on November 4th or 5th, was arrested by United States Customs agents on December 19, 1980 at a border station in Blaine, Washington. Waiving extradition, the appellant returned to Texas on December 31, 1980 to stand trial for the murder of Richard Luster. On August 6, 1981, the jury returned a guilty verdict against the appellant, giving rise to this appeal. Additional pertinent portions of the evidence will be referred to in the discussion of the ground of error to which those facts relate.

We think logical continuity requires that we first address appellant's grounds of error which attack the trial court's decisions to admit certain evidence and testimony into the record. After we have resolved appellant's evidentiary grounds of error, we will discuss appellant's sufficiency of the evidence ground of error. Finally, we will consider appellant's eighth ground of error in which he objected to the court's decision to instruct the jury on the law of parties.

Appellant argues, in his third ground of error, that the trial court erred in permitting the State to introduce testimony and exhibits that were fruits of an allegedly illegal arrest. He contends that the State's warrant of arrest was defective and, therefore, all evidence seized and all statements made as a result of the allegedly illegal arrest should have been excluded.

We initially note that all evidence obtained by the State as a result of an accused's illegal arrest is inadmissible at the subsequent trial. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "The exclusionary sanction applies to any 'fruits' of a constitutional violation--whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention." United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980). In order to determine what evidentiary consequences must follow from the appellant's arrest, we must first determine whether or not the arrest was lawful.

As a threshold question in deciding the lawfulness of appellant's detention, we must first determine when he was placed under arrest. "A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person ... arresting without a warrant." Tex.Code Crim.Pro.Ann. art. 15.22 (Vernon 1977). It is not necessary that one be brought to a prison in order for there to be an arrest. An arrest has occurred, within the meaning of Article 15.22, when a person's liberty of movement is restricted or restrained. Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980). Here, we believe, appellant's liberty of movement was initially restricted when he was held by the U.S. Customs Service.

Officer Terry Neeley of the U.S. Customs Service testified that he was on duty at the United States-Canada border station in Blaine, Washington when a car containing appellant and two females approached on its way from Canada. When asked to identify themselves, appellant gave Officer Neeley a birth certificate which had the name of Thomas William Gilmore on it. Officer Neeley then asked if he could look at appellant's wallet in order that Neeley could see additional proof of appellant's identification. After receiving the wallet from appellant, the officer took out the driver's license contained in the wallet and noticed that the license had the name Vernon Gilmore and appellant's picture on it. When asked to explain the discrepancy between the name on the birth certificate and the name on the driver's license, appellant told Neeley that the birth certificate was his brother's and that he was holding it because his brother "loses his." Appellant indicated to Neeley that his actual birth certificate was in the wallet and removed the birth certificate for Neeley's inspection. Neeley then asked appellant and his companions to explain why they were coming from Canada. Appellant answered that he was presently unemployed and that he was thinking of moving to Canada and the three of them had just returned from lunch there. Neeley proceeded to enter the identification he had received into the Service's crime computer and received a report of an arrest warrant outstanding against appellant for the murder in question here. At this point, Neeley directed two officers of the Customs Service to search appellant for weapons and he was then taken into custody. We believe that appellant's arrest was effectuated at this point in time.

We must next determine what effect the arrest warrant had on appellant's detention by the Customs Service. The State concedes that the arrest warrant was defective, since it was essentially similar to the one held constitutionally defective in Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980). Since the warrant was defective, if the arrest was lawful its lawfulness must be based on some other grounds.

The United States Supreme Court has stated that where an arrest warrant is issued without a sufficient showing of probable cause, any subsequent arrest made in substantial reliance on this warrant is constitutionally invalid. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). In Whiteley, the warrant in question was based upon an affidavit deficient in the same manner as the affidavit upon which the instant warrant was based, that is, the affidavit did not contain any proof corroborating the informant's tip and no indicia of the informant's reliability. The Court there held the warrant defective but then proceeded to determine whether probable cause existed for the arrest apart from the warrant. It then concluded that no such probable cause existed.

We do not believe Whiteley stands for the proposition that an arrest is per se unlawful if the arrest warrant is defective. Instead, we think, its teaching is that an arrest may indeed be lawful, notwithstanding the defective arrest warrant, if independent police activity prior to the arrest was able to glean sufficient facts to establish probable cause. The information gathered from this independent police activity must tend to indicate that the defendant is in the process of committing, or has previously committed, a crime. We believe this reasoning is consistent with that of the Court of Criminal Appeals in Green v....