Hawkins v. State, 65000

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation660 S.W.2d 65
PartiesSamuel Christopher HAWKINS, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 65000,65000
Decision Date20 July 1983

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. Trial was held in Lubbock County following a change of venue from Hutchinson County. After finding appellant guilty of capital murder, the jury answered "yes" to the first two special issues under Art. 37.071(b). Punishment was assessed at death.

In his fourth ground of error, appellant challenges the validity of his warrantless arrest. He maintains the arrest was not based upon probable cause and the confession he gave following the arrest should have been suppressed. At the conclusion of a pretrial suppression hearing, the court found that appellant's arrest had been based upon probable cause.

Betty Thompson testified that on June 30, 1977, she observed appellant drive by her home. She saw appellant park his car, approach her house and open a storm door at the front of the house. Fearful that appellant was about to enter her home, Thompson had her son, who was armed with a rifle, escort appellant back to his car. Thompson then called the authorities and gave them a description of appellant and the license plate number of the car he was driving.

Earl Bowden testified that while working in his yard on June 30, 1977, he saw appellant enter a neighbor's home through a window. Shortly thereafter, Bowden saw appellant leave the home through a door. Bowden notified the owner of the burglary and gave him the license number of the car the intruder had been driving.

Detective Darrell Garner, of the Amarillo Police Department, testified that he investigated the incident which occurred at Thompson's home. Garner obtained appellant's name and address after running the license plate number given by Thompson through vehicle registration records. Accompanied by fellow officers, Garner went to appellant's home in Amarillo. Appellant's wife told the officers her husband was not home at the time. Later in the day, Garner returned to appellant's home and observed appellant trying to leave the house through a window. Garner ordered appellant back into the house.

Deputy Eddie Kirkwood, of the Potter County Sheriff's Office, was with Garner the second time officers went to appellant's home. Following a short conversation, appellant agreed to follow the officers to the Amarillo Police Department to answer questions concerning the incidents Thompson and Bowden had observed. When Kirkwood was returning to his car, he saw appellant fleeing from the house and through a neighbor's backyard. Kirkwood then apprehended appellant and transported him to the Amarillo Police Department. Kirkwood stated that appellant was arrested due to the similarities in his appearance and his license plate number to those which had been observed by Thompson and Bowden.

It is well established that probable cause to arrest exists when the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime. Hooper v. State, 516 S.W.2d 941. In Jones v. State, 565 S.W.2d 934, it was concluded that officers had probable cause for an arrest after they recognized the defendant based upon a description given by the robbery victim and a co-defendant. Likewise, in Loving v. State, 559 S.W.2d 363, an arrest was based upon probable cause when the arrest was made upon a description of the defendant's car given by witnesses who had been present at the scene of a stabbing. Finally, Art. 14.04, V.A.C.C.P., provides as follows with regard to a warrantless arrest:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."

We conclude that Kirkwood's arrest of appellant was based upon probable cause. As stated above, the arrest was based upon the similarities in appearance of appellant and his car to the description given by Thompson and observations of Bowden. Moreover, appellant's attempted escape dispensed with the necessity of officers obtaining a warrant for his arrest. Appellant's fourth ground of error is without merit.

In his third ground of error, appellant contends the trial court erred in admitting his written statement into evidence. He maintains that he was induced to give the statement as a result of authorities promising to seek psychiatric help for him. He further contends that he did not voluntarily waive his right to counsel.

Appellant filed a motion to suppress his confession and the court held a hearing thereon in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Art. 38.22, V.A.C.C.P. At the conclusion of the hearing, the court found that the confession would be admissible and entered findings which recite that appellant "was not coerced into making any statement by any force, threats, persuasion or promises or any other improper influence" and that appellant "waived his right to be represented by counsel."

Upon being arrested by Kirkwood, appellant was given his Miranda 1 warnings. He was then transported to the Amarillo Police Department arriving at approximately 12:15 p.m. on June 30, 1977. Upon his arrival at the police station, appellant was given his warnings a second time. At 3:00 p.m., appellant's wife came to the police station and visited with him for approximately thirty minutes. Following this visit, appellant was not questioned again until after a lineup was conducted at 7:30 p.m.

Numerous officers then questioned appellant from 7:30 p.m. until the next morning at 4:20 a.m. During this period, appellant gave authorities three written statements. The instant statement was the second given by appellant in the early morning hours of July 1, 1977. 2

Detective James LaFavers, of the Amarillo Police Department, began questioning appellant at 11:20 p.m. LaFavers testified he gave appellant his warnings before the questioning began. At no point in the interrogation did appellant indicate that he wanted to speak with a lawyer or stop the interrogation. With regard to a promise for psychiatric care, LaFavers testified as follows:

"Q. Did you promise him any benefit or any psychiatric treatment or anything at all to induce him perhaps to make a statement of this nature?

"A. No.

"Q. Did anyone else in your presence make such a promise that you can recall?

"A. No."

Captain E.N. Smith, of the Amarillo Police Department, assisted LaFavers in the interrogation of appellant. Smith testified that appellant never stated that he wanted a lawyer present during the questioning. Sergeant Isaiah Garrett, of the Potter County Sheriff's Office, participated in the interrogation and testified as follows with regard to a promise for any type of mental treatment in return for a confession:

"Q. Did you talk to him about the possibility of mental treatment, mental help, obtaining mental help through the Court?

"A. I did mention that to him. I said it would be up to the Judge or your lawyer.


"Q. Did you tell him that the best way to get that mental help would be to confess?

"A. I didn't tell him. He asked me. I told--he asked me.

"Q. What specifically did he ask you?

"A. He asked me about his mental problem. He said he would like--could he see a doctor or a--get to see a psychiatrist or something. I told him it would be through the Judge or a lawyer.

"Q. Did you tell him that he couldn't get to a Judge or a lawyer, especially a Judge, couldn't get to a Judge until he confessed and was arraigned and everything?

"A. No, sir, I did not.

"Q. You say you told him it would be up to the Court or his lawyer, right?


"A. Yes, sir."

Appellant testified he never received his warnings from any of the officers. He stated that he repeatedly asked that the questioning cease and that he be given an opportunity to call a lawyer. Appellant related that LaFavers told him that he would be given psychiatric treatment if he would sign the statement.

A tape recording made during a part of the interrogation was introduced into evidence during the suppression hearing by appellant. A transcription of that recording reflects that LaFavers made the following statements to appellant:

"LA FAVERS: It a ...... Its something that you yourself can't hold yourself at fault for. It a ...... It is something that occasionally happens to some of us, but its nothing that can't be helped. Its something that we can help you with and we'll try. We will do that. We understand what you situation is, We do.

We're not here to in any way punish you or criticise you because it is understandable what your situation is.

* * *

* * *

"LA FAVERS: Sam, to be honest with you I would ...... I would think that the courts in your situation wouldn't be very lenient. I really do. I think that they will observe the fact that you need help ...... you're trying to seek that help already psychological--psychiatric help and a ...... I think they would recommend a psychiatrist. Okay."

The judge at the Jackson v. Denno hearing is the sole judge of the weight and credibility of the witnesses. He may believe or disbelieve all or any part of any witness' testimony. Hughes v. State, 562 S.W.2d 857; Myre v. State, 545 S.W.2d 820. Whether a defendant waives his right to remain silent and have counsel...

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