Johnson v. State, 67417

• Decision Date: 23 December 1986
• Docket Number: No. 67417,67417
• Citation: 722 S.W.2d 417
• Parties: Jerry Dorsey JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 417

722 S.W.2d 417

Jerry Dorsey JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 67417.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 23, 1986.

Andrew L. Jefferson, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Alvin M. Titus and Ed Dodd, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

McCORMICK, Judge.

On original submission, a panel of this Court affirmed appellant's conviction upon the basis of Haney v. State, 588 S.W.2d 913 (Tex.Cr.App.1979), and Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978). Appellant's motion for leave to file motion for rehearing was granted in order for the Court to determine whether appellant's judicial confession waived his right to appeal the unfavorable ruling upon his written pretrial motions to suppress. See Article 44.02, V.A.C.C.P. In the interim, Haney and Ferguson have been overruled to the extent that they conflict with the recent decision of Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985). Morgan holds that, upon a plea of guilty or nolo contendere where the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the defendant's judicial confession or admission does not bar appeal of matters raised by written pretrial motions. Since appellant's conviction upon his plea of nolo contendere falls squarely within the parameters of Article 44.02 as interpreted by Morgan, we will address appellant's grounds of error as presented in his brief on direct appeal. ¹

Appellant filed two motions to suppress. On June 20, 1980, he filed a motion to suppress evidence seized pursuant to a search warrant; on September 2, 1980, appellant filed a supplemental motion to suppress evidence seized as a result of his arrest. Both motions were heard and overruled on September 3, 1980, and, subsequently, appellant entered a plea of nolo contendere. His plea was conditioned upon his right to appellate review of the trial court's rulings on his motions to suppress. Following the agreed punishment recommendation, the trial court assessed punishment at thirty-five years in the Texas Department of Corrections.

We will first address the issue as to the legality of appellant's arrest. Appellant's challenge of the warrantless arrest is twofold: (1) the State failed to prove that the warrantless seizure of appellant was reasonable under the Fourth and Fourteenth Amendments to the United States Constitution and (2) the warrantless arrest was not authorized under Chapter 14, V.A.C.C.P.

In order to better understand appellant's contention we set out briefly the facts of the case. Appellant was arrested for the murder of John Goode. Mary Amy Longacre testified at both the examining trial and the hearing on the motion to suppress. Longacre witnessed the attack on the deceased but stated that she could not identify the perpetrator because of poor lighting conditions. Longacre testified that Goode, a Dallas resident, had been staying with her at her apartment in Houston for several days. At approximately 5:30 a.m. on April 13, 1980, Longacre was awakened by the sound of footsteps inside the apartment. Looking up, she saw a black male at the foot of the bed approaching Goode with what appeared to be a knife in his right hand. Longacre began to scream and attempted to awaken Goode. The intruder started attacking Goode as he was gaining consciousness and Longacre jumped out of bed and ran from the apartment. She ran downstairs to the apartment where her friends, Hap and Susan, lived. Hap, armed with a shotgun, left the apartment to aid Goode, while Susan and Longacre called the police, apartment security, and an ambulance. Hap returned and told Longacre that Goode had been seriously injured. Longacre went to Goode, who was lying on the ground at the foot of a stairwell.

Officers Cuevas and Keyes testified at the hearing on the motions to suppress. The officers arrived at the scene at 6:12 a.m. to find Goode being treated by paramedics. Goode was transported to the hospital where he later died as a result of several stab wounds to the chest.

The bedroom where the stabbing took place was in disarray. The bed linens and spread, as well as the bedroom walls, door and door frame were bloodstained. A bloody kitchen knife was found behind a bedroom vanity. Several articles were found in the hall which lead to the bedroom: a hammer, one black glove, a black undershirt knotted at the top, and a key ring containing assorted keys. The keys appeared to be apartment master keys. Longacre testified that the keys did not belong to her or Goode. There was no evidence of forced entry. There were also bloodstains on the television in the living room, the inside of the apartment door, and in the dining area. Two bloody shoe prints were also found in the dining area.

During the course of the investigation, the appellant, a black male, arrived at the apartment. Keyes stated appellant arrived "a little after six." Appellant identified himself as a maintenance man. Appellant explained that when he called the apartment answering service that morning, they suggested that he go to the apartment because there had been a stabbing. Both officers testified that appellant seemed nervous and that they thought it was odd for appellant to appear since two apartment security guards were also present. Keyes stated appellant appeared to be more agitated in the presence of Longacre.

Due to the physical evidence found at the crime scene, Cuevas believed the perpetrator to be an employee of the apartment complex. One of the keys on the keyring recovered from the hallway opened Longacre's front door. Cuevas sent appellant to the apartment manager to secure the names of other black employees. Upon appellant's return, Cuevas noticed what appeared to be blood on appellant's rear pant's pocket. Cuevas asked appellant if he recognized the keys recovered from the hallway. After admitting that the keys were his, appellant was handcuffed. Keyes read appellant his Miranda rights. Thereafter, appellant was transported to the Harris County Homicide Division where he was placed in the custody of Detective J.L. Hall. Hall read appellant his rights and began to interrogate him. During the course of the interrogation, Hall noticed what appeared to be a red substance on appellant's watchband. The watchband and the white pants appellant was wearing were seized.

Since a person is arrested when he has been actually placed under restraint, appellant's arrest occurred at the time he was handcuffed by Keyes. See Article 15.22, V.A.C.C.P.

Probable cause to arrest existed if the facts and circumstances within the knowledge of the arresting officer and of which he had reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person committed or was about to commit an offense. Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978); Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1975); Barber v. State, 611 S.W.2d 67 (Tex.Cr.App.1981); Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983); Harris v. State, 656 S.W.2d 481 (Tex.Cr.App.1983). This Court will independently scrutinize the objective facts without regard to the subjective conclusions of the police to determine the existence of probable cause. See Townsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983) and cases cited therein.

At the time of appellant's arrest, the officers on the scene had personal knowledge or reliable information from a credible source of the following facts and circumstances:

(1) the attacker was a black male.

(2) there was no sign of forced entry (3) one of the master keys found in the hallway unlocked the front door.

(4) the assailant would be blood spattered.

(5) appellant arrived at the murder scene shortly after the police and furnished an odd explanation for his presence.

(6) appellant was a black male.

(7) appellant was employed by and a resident of the apartment complex.

(8) appellant appeared to have blood on his white pants.

(9) appellant admitted that the master keys found in the hallway were his.

Based on the foregoing, we find that men of reasonable caution would have been warranted in the belief that appellant had committed the murder of Goode. We believe that the facts in the instant case supporting probable cause are as strong as, if not stronger than, those found in Townsley, supra. Furthermore, as in Ussery v. State, 651 S.W.2d 767, 770 (Tex.Cr.App.1983), appellant "literally thrust himself under the scrutiny of the investigating officers at the scene of the crime." Despite this initial similarity to Ussery, the presence of appellant's keys within the apartment and his subsequent admission of ownership supply a direct link between the appellant and the offense. Therefore, the result in Ussery, i.e. the officers only possessed sufficient knowledge to justify a brief detention for investigation, is clearly inapplicable to the case at bar.

Appellant further contends that a showing of probable cause to make a warrantless arrest is not sufficient in the absence of exigent circumstances. The State's brief does not address the issue of exigent circumstances.

The Fourth Amendment as interpreted by the United States Supreme Court does not require that police officers first obtain a warrant in order for a public, felony arrest to be valid when probable cause to arrest exists. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). In Watson, the United States Supreme Court stated:

"... we decline to transform [the] judicial preference [for a warrant] into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the...