Honeycutt v. State
| Citation | 499 S.W.2d 662 |
| Decision Date | 03 October 1973 |
| Docket Number | No. 45505,45505 |
| Parties | Ozelle Petty HONEYCUTT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Weldon Holcomb, Tyler, for appellant.
Curtis L. Owen, Dist. Atty., and Charles Crow, Asst. Dist. Atty., Tyler, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the felony offense of driving a motor vehicle upon a public highway while intoxicated. The punishment was assessed at five (5) years by the court following a verdict of guilty.
Initially appellant contends the trial court 'erred in overruling motion to suppress evidence obtained by virtue of unlawful arrest without warrant and resulting unlawful search and seizure.' The motion to suppress sought to exclude testimony of the officers as to appellant's condition at time of arrest and results of the breathalyzer test.
Thus the facts become important in order to evaluate appellant's contention. David Anderson, owner of the Paco Industrial Tape and Label Company, testified that about 4:30 p.m. on November 11, 1970, his motor vehicle struck the rear fender of a Chevrolet automobile which had pulled away 'fast' from a stop sign and into his path. The accident occurred at the intersection of Loop No. 323 and the Old Jacksonville Highway in Smith County. The Chevrolet did not stop and Anderson related that he followed it, observing it cross back and forth across the center line and go off on the shoulder of the road. He followed it until it stopped in front of a residence on either Ninth or Tenth Street in Tyler. There Anderson had a conversation with the driver whom he identified as the appellant. The appellant denied she had been involved in an accident. Her speech was slurred. To Anderson the appellant gave the appearance of being intoxicated, although she did not leave the car. When Anderson told her he was going to call the police she replied: 'Go ahead, you son of a bitch.'
Anderson then drove to a nearby store and called the police and returned to the residence in question within a period of ten minutes. The woman was not in the car.
Tyler City Patroman John Beddingfield related that on the date in question he responded to the call made by Anderson and met him at the store from which the call had been made and then proceeded, at about 4:40 or 4:45 p.m., to the residence in question. Beddingfield further related that he knew from personal knowledge that this house was the residence of the appellant; that he observed damage to Anderson's car as well as to the appellant's car, which he recognized and which was still parked in front of the house. He revealed that Anderson reported to him as had the police broadcast that the appellant had been driving while intoxicated. He knew that the appellant had been previously convicted of driving while intoxicated.
After being joined by Officer Bragg, Beddingfield knocked on the door, shook the screen and tried to attract attention; but to no avail. Some five to eight minutes later the officers entered an unlatched screen door and found the appellant lying fully clothed and awake on a bed in the bedroom. She was placed under arrest, taken to the patrol car and then to the local Department of Public Safety office for a breathalyzer test to which she consented. Beddingfield testified her walk was unsteady, that he had to assist her, that her speech was slurred and that in his opinion she was intoxicated.
Officer Bragg generally corroborated Beddingfield's testimony. He related that in attempting to attract attention they knocked on a back window and had a conversation with her and knew she was in the house before they entered. Bragg expressed the opinion that the appellant was intoxicated.
John Hanna, highway patrolman, testified that he was a certified operator of a breathalyzer unit and that he administered a test to the appellant at 5:22 p.m. on the date in question and the result of the test was '0.22.' Eddie Anderson, a chemist with the Department of Public Safety, interpreted the results of the test as showing that the appellant was intoxicated.
The appellant did not testify but called Henry Carsten, who related he was working on the roof of appellant's house on the afternoon in question and that he talked with her after her arrival home and he expressed the opinion that she was not intoxicated.
We begin consideration of appellant's contention with the familiar constitutional precept that peace officers should always obtain a warrant before an arrest when possible. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). 1
There are, of course, exceptions made to this general rule by the Code of Criminal Procedure in permitting arrests without a warrant under certain designated circumstances, but these statutes are given a narrow construction. 2
In the instant case the State, in order to justify the warrantless arrest, relies upon Article 14.04, Vernon's Ann.C.C.P., which provides as follows:
'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.'
In Vinson v. State, 138 Tex.Cr.R. 557, 137 S.W.2d 1048 (1940), it was held that defendant's arrest for robbery was illegal and evidence obtained as a consequence of the arrest should have been excluded where the arresting officer had 'information' that someone had seen the defendant at a holdup, but the defendant was at his home and was not making any attempt to escape. See also Butler v. State, 151 Tex.Cr.R. 244, 208 S.W.2d 89 (1947).
Especially pertinent is Rippy v. State, 122 Tex.Cr.R. 101, 53 S.W.2d 619, 627 (1931), where the court in reversing a murder conviction and speaking through Judge Hawkins said:
'It is not necessary to discuss whether circumstances discovered by a peace officer himself, and which lead him to believe that a party has committed a felony, may be substituted for the provisions of the statute which says that the information must reach the officer upon representations of a credible person.'
'That part of the statute which says that 'the offender is about to escape' is indispensable. That such condition did not exist in the present case seems to be without dispute in fact. At the time the officer went to appellant's house, appellant was partially undressed and in bed. In Cortez v. State, 44 Tex.Cr.R. 169, 69 S.W 536, 539, it was said that it was not shown that Cortez was about to escape, but: '* * * On the contrary, the evidence is to the effect that he was at his home in the county, engaged in making a crop; and that, after the sheriff learned of his whereabouts on the morning of the homicide, he was then within six miles of the justice of the peace, and could have obtained a warrant had he so desired."
Imminent escape has long been held essential to a warrantless arrest under Article 14.04, supra, and its precursor, Article 215, Vernon's Ann.C.C.P. (1925). Rutherford v. State, 104 Tex.Cr.R. 127, 283 S.W. 512 (1926); Gill v. State, 134 Tex.Cr.R. 363, 115 S.W.2d 923 (1938); Adams v. State, 137...
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...is that an arrest must be made pursuant to a warrant. Dejarnette v. State, 732 S.W.2d 346, 349 (Tex.Cr.App.1987); Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). However, "it is state law and not federal law that governs the legality of a state arrest so long as that law does not viol......
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...is per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971); Honeycutt v. State, 499 S.W.2d 662, 664 (Tex.Crim.App.1973). It is the State's burden to prove the legality of a warrantless arrest or search. Coolidge v. New Hampshire, supra; ......
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...circumstances existed to relieve the State of its statutory duty to obtain a warrant before arresting him, citing Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). He correctly asserts that the burden is on the State to show that the arrest was within an exception to the warrant require......
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...the person arrested was about to escape. Inarticulate hunches and suspicions are not enough to justify the arrest. Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973). In making this determination, we must consider the factors of appellant's suspicious behavior when identification was requ......