Gordon v. State

• Citation: 801 S.W.2d 899
• Decision Date: 12 December 1990
• Docket Number: No. 560-89,560-89
• Parties: Brent Thomas GORDON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 899

801 S.W.2d 899

Brent Thomas GORDON, Appellant, v. The STATE of Texas, Appellee.

No. 560-89.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 12, 1990.

C.E. Clover, Jr., Sealy, for appellant.

Peter C. Speers, III, Dist. Atty., and Thomas D. Glenn, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of aggravated sexual assault and a jury assessed punishment at 10 years confinement in the state penitentiary probated for 8 years and a fine of $8000.00. V.T.C.A. Penal Code, § 22.021. The trial court assessed a term of not more than 120 days and not less than 60 days in the penitentiary as a condition of probation based upon the jury's affirmative finding that appellant used or exhibited a deadly weapon in the commission of the offense. Article 42.12, § 3g(b), V.A.C.C.P. The conviction was affirmed on direct appeal. Gordon v. State, 767 S.W.2d 866 (Tex.App.--Eastland 1989). This Court granted appellant's petition to review three grounds: (1) whether the Court of Appeals misapplied the ruling in Vallejo v. State, 408 S.W.2d 113 (Tex.Cr.App.1966) by holding it is unnecessary for an affidavit in support of an arrest warrant issued under Chapter 45 of the Code of Criminal Procedure to be supported by facts stating probable cause; (2) whether the appeals court erred in applying Article 38.23(b), V.A.C.C.P., to the instant case since the evidence in question was obtained prior to the effective date of that statute; and (3) whether the Court of Appeals misapplied this Court's ruling in Black v. State, 739 S.W.2d 240 (Tex.Cr.App.1987) by holding the prohibition against pretext arrests applies only to warrantless arrests and not to pretext arrests purportedly made pursuant to an arrest warrant. ¹ After reviewing each ground, the judgment is reversed and the cause remanded for further consideration in light of this opinion.

Law enforcement officials in Hempstead suspected appellant of committing the robbery and sexual assault of a woman employed as office manager of the Hempstead Veterinary Clinic, but lacked probable cause to arrest and charge him with the crimes. Thereafter, police discovered the existence of an outstanding arrest warrant issued upon appellant's failure to appear before the municipal court in Deer Park. Based on this warrant, appellant was arrested, his apartment was searched, and appellant was interrogated regarding the robbery and sexual assault. The instant prosecution followed.

The record reflects evidence in the case consisted in the main of testimony of the complainant and videotaped and written confessions the defendant provided during his interrogation. On April 3, 1987, complainant was alone inside the veterinary clinic when a young Afro-American male entered through the front door and walked up to the counter where she was sitting. The complainant described the man as clean cut, in his early to mid-twenties, wearing a baseball cap and red-rimmed sunglasses. The man pulled out a small, silver-colored automatic pistol and announced, "this is a robbery, give me your money but turn around and don't look at me." The robber was given all the money the clinic had in the cash box, about $35.00. He then made the complainant lock both front and rear doors and ordered her to give him the money in her purse as well as her driver's license. The complainant testified the robber wanted the latter article "so I can find you if you tell the police about me." The offender then had the complaining victim take him to the rear of the building and into a bathroom, where he forced her to bend over the toilet while he raped her. Afterward, the man told her to remain inside the bathroom for ten minutes after he left and to tell the police she had been assaulted by a "guy six-foot tall, white man with a beard ... not a black man." The victim waited about five minutes before calling the police. The victim testified she got only a glimpse of her attacker due to his repeated admonishments to her not to look at him, reinforced by his holding the pistol to the side of her head during the ordeal. Although she was not able to positively identify appellant as the perpetrator, she did state there were no noticeable differences in appearance between appellant and her attacker, and it was certainly possible that he was the man who robbed and raped her on the day in question.

The State also introduced a confession given by appellant subsequent to his arrest:

On April 3, 1987, I walked from the Apt. # 31 were (sic) I live down 5th Street to the Hempstead Vet. Clinic. I walked in the front door, I saw a female sitting behind the counter. I walked up, pull (sic) a pistol out, I ask her were (sic) the money was and give it to me. I told the female to put her head down, not to look at me. After I got the money I told her to go into the bathroom. Inside the bathroom I told the female to take her close (sic) off. Once she remove (sic) her clothes I decide to assault her. I told the female to bend over. I had a problem at first penetrating (sic) the female but I finally did so. I do remember I opened the bathroom window, I did this so I could hear if anyone came in. I also took the money out of her purse and I took her Drivers Lic. (sic). I told the female I'm taking the drivers lic. so if you tell the police I know who you are. I told the female to describe me as a w/m, I can't remember what else. I left out the back door, ran down 5th street towards (sic) Bremond, I turned left on Bremond. While I was running I thru (sic) the females Drivers Lic. into the field on Bremond & 5th Street, Hempstead.

In the main it was this confession that was the object of appellant's motion to suppress which was subsequently denied.

Appellant's first two grounds for review are argued together, and both relate to the validity of the warrant and its execution. In his third ground for review, appellant contends the appeals court misapplied our Black decision by holding the prohibition against "pretext arrests" applies solely to warrantless arrests. The essence of appellant's claim is that his arrest by warrant was a pretext arrest, in that the arresting officers used a warrant for a minor traffic offense and failure to appear thereunder as a pretext to conduct what otherwise might be construed an impermissible search. We will begin by examining appellant's third ground in the context of what this and other courts have termed "pretext" seizures.

I.

So-called "pretext" seizures by law enforcement authorities may be broadly categorized as (1) those involving administrative or regulatory stops which lack initial suspicion of wrongdoing on the part of the detainees, see Webb v. State, 739 S.W.2d 802 (Tex.Cr.App.1987); Boyle v. State (Tex.Cr.App. No. 69,743, Oct. 4, 1989, rehearing granted); Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985), and cases cited therein; and (2) those situations in which an individual is suspected of having committed a criminal act and is either temporarily detained for investigation or arrested. In this latter category, the act or crime for which the person is suspected of committing is almost always different from the conduct allegedly committed which forms the basis for the detention or seizure. See generally United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (Causey II ); Black v. State, supra, and cases therein cited. It is this latter type of "pretext" arrest that forms the basis of the instant appeal.

Appellant is correct when he contends the Court of Appeals attempted to distinguish Black from the case at bar for the reason seizure in that case was made without a warrant. The appeals court then went on to cite Causey for the proposition the police had lawfully arrested appellant under auspices of a valid warrant and therefore their conduct was not "objectively unlawful." As to the applicability of Black, we do not see presence of a warrant to change the basic proposition embodied in that case, to wit: "an arrest for one crime is not permitted to be used as a pretext to search for evidence of another." Black v. State, 739 S.W.2d at 243. This is not to say the above proposition may be viewed in a vacuum; indeed, as will be seen infra, the foundation upon which the pretext doctrine was espoused in Black was never firm, and has since crumbled beneath the weight of reason and logical analysis of authority previously espousing the doctrine so as to become suspect. However, we do not believe the pretext doctrine, as applied through the Fourth Amendment, should have any less an impact on searches or seizures conducted pursuant to a warrant than on those conducted sans warrant.

The origin of the doctrine or theory is generally accorded the Supreme Court decision in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). Pursuant to an arrest warrant, federal agents arrested a suspect in a partitioned office that was ten feet by twenty feet. They searched the room extensively, including waste baskets, closed desk drawers, and closed cabinets. Books, papers and other articles were seized as evidence of the offense. The Court stated, "[t]he only question presented is whether the searches of the desks, waste baskets and of all drawers and closed cabinets and the seizure of the things taken from them were reasonable as an incident of the arrests." Id. at 463, 52 S.Ct. at 423. The Court answered the question negatively by circumscribing the scope of a proper search incident to arrest. Holding the search and seizure violated the defendant's Fourth and Fifth Amendment rights, the opinion then closed with the dictum later used as authority in Black: "An arrest may not be used as a pretext to search for evidence." United States v. Lefkowitz, 285 U.S. at 467, 52 S.Ct. at 424.

Any examination of this precedent-setting dictum must be viewed...