Lowery v. State, 45613

• Citation: 499 S.W.2d 160
• Decision Date: 25 September 1973
• Docket Number: No. 45613,45613
• Parties: Jackie Vance LOWERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 160

499 S.W.2d 160

Jackie Vance LOWERY, Appellant, v. The STATE of Texas, Appellee.

No. 45613.

Court of Criminal Appeals of Texas.

Sept. 25, 1973.

Emmett Colvin, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at death.

Morris J. Patterson, an employee of a vending machine company, was shot and killed during an armed robbery in Dallas on the afternoon of October 26, 1970.

Floyd Johnson and Barney Slakey were counting coins in the vending company office when the robbery occurred. Both made positive in-court identifications of appellant as the one of two robbers who drew a long-barrelled revolver and ordered them to lie on the floor at the rear of the office. The other robber brandished a sawed-off shotgun.

While they were on the floor, another employee entered the front door. They heard one of the robbers speak, then a pistol shot, and the employee, Patterson, fell to the floor beside Slakey. Patterson was shot in the back, and the bullet, a .357 magnum, passed completely through his body. He died thirty minutes later. Neither of the two witnesses actually saw the shooting occur.

On October 28, 1970, the Dallas Police received a tip from an unidentified informer that appellant was involved in the robbery and murder. The witness Slakey was then asked to view a photographic display, at which he identified a picture of appellant as that of one of the robbers. Based on the tip and the photographic identification, an affidavit was filed and a warrant issued for appellant's arrest.

Officers, acting pursuant to an arrest warrant, apprehended appellant in an apartment in Dallas on October 29, 1970.

Appellant challenges the legality of the arrest, contending that the affidavit upon which the arrest warrant was issued was based upon hearsay and did not comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). ¹

He urges that he was harmed by the illegal arrest through the admission of a .357 magnum pistol seized incident to his arrest. The pistol was discovered in plain view on the floor beside appellant when the officers entered the apartment living room. If the arrest was unlawful, then the pistol would not have been admissible.

The affidavit in issue first alleges that appellant committed the offenses of robbery and murder, the source of which allegation was 'reliable information from an informant.' Clearly, the allegation is hearsay. The Supreme Court has held that the same standards set forth in Aguilar exist for hearsay affidavits supporting arrest warrants as exist for those given in support of search warrants. Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), reversing Barnes v. State, Tex.Cr.App., 390 S.W.2d 266.

The affidavit is in the record before us. Dusek v. State, Tex.Cr.App., 467 S.W.2d 270. The pertinent portion of the affidavit reads: 'Affiant has reliable information from an informant that Jackie Vance Lowery did commit the offense of armed robbery and murder of Morris J. Patterson on the 26th day of October, 1970 at approximately 5:40 P.M. Mr. Barney Slakey has positively identified a picture of Jackie Vance Lowery at 9:05 P.M. on the 28th day of October, 1970 as the person who committed the offense of armed robbery and murder of Morris J. Patterson. The offense occurred at 1119 Wayne Street at the City Cigarette Service Office.'

The affidavit contains neither underlying facts upon which the informer concluded the appellant was involved nor any circumstances from which the affiant concluded the informer was credible and his information reliable. Thus, with respect to the first sentence, neither of the two prongs of Aguilar has been satisfied. Spinelli v. United States, 393 U.S. 410, 89 S Ct. 584, 21 L.Ed.2d 637 (1969); cf. Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744; Powers v. State, Tex.Cr.App., 456 S.W.2d 97.

A hearsay affidavit, otherwise insufficient under Aguilar, may be buttressed with corroborating facts obtained in surveillance or information obtained from other sources, Spinelli v. United States, supra; Polanco v. State, Tex.Cr.App., 475 S.W.2d 763. The facts recited for corroboration purposes must, however, be based upon personal knowledge of or observations by the affiant. Ruiz v. State, Tex.Cr.App., 457 S.W.2d 894 (concurring opinion).

The corroborating facts recited in the affidavit before us are: 'Barney Slakey has positively identified a picture of Jackie Vance Lowery as the person who committed the offense of armed robbery and murder of Morris J. Patterson.' The affidavit does not provide the necessary information that the identification was made in the affiant's presence, if indeed it was, nor that Slakey was a person known to affiant as an eyewitness to the robbery-murder who could therefore identify the offender. Without qualifying the corroborating facts as the personal knowledge of the affiant, the additional facts are corroborative of nothing, see Spinelli v. United States, supra (concurring opinion of Mr. Justice White), and the affidavit is still deficient.

It is possible that the second sentence, which recites that Slakey identified appellant as the offender, could itself provide probable cause for a warrant to issue. We immediately note, however, that this statement, too, is hearsay.

So again we look for underlying facts upon which this named informer concluded appellant was the offender. We find there are none. From testimony of several State's witnesses, including the informer and the affiant, we know that Slakey was an eyewitness to the robbery and present when the fatal shooting occurred. This vital fact, known to the affiant, was not included in the affidavit.

The difficulty we have with this affidavit is the same as that of the Supreme Court in Aguilar.

'The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that the narcotics were in petitioner's possession.' 378 U.S. 108 at 113--114, 84 S.Ct. 1509 at 1513.

Although this part of the affidavit recites identification by a named individual, the same element of personal knowledge by him or qualification of his capacity to identify the offender is not present. While the evidence reflects these facts were known to the officers, the affidavit is devoid of such information. The inferences from the facts which lead to the complaint '(must) be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). The purpose of the complaint, then, is to enable the appropriate magistrate to determine whether the 'probable cause' required to support a warrant exists. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509 (1958).

The magistrate could not have found probable cause in this case absent a showing that Barney Slakey was an eyewitness. The affidavit fails to reflect this vital fact.

We must conclude that the affidavit provided the magistrate with no basis for an independent determination of probable cause, and the warrant that issued therefrom was illegal.

Having found the affidavit invalid and having concluded a lawful arrest could not have been made with the arrest warrant, we look for a basis upon which the arresting officers could have effected a warrantless arrest. ²

Officer Hallam testified that he and Officer Potts were among approximately twenty officers who participated in appellant's arrest. Both Hallam and Potts knew of the informer's tip that appellant was the offender, the informer having conveyed the tip directly to Potts. Of course without more information, this tip alone did not constitute probable cause, Whiteley v. Warden supra; Cole v. State, supra; however, both also knew that Barney Slakey was an eyewitness to the robbery, present during the shooting, and that Slakey had identified appellant in a photographic display as the robber-murderer.

The total information available to them at the time of the arrest would clearly have warranted 'a man of reasonable caution in the belief' that appellant had committed the offense. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Almendarez v. State, Tex.Cr.App., 460 S.W.2d 921. Within the limits of the Fourth Amendment, the law of the State determines the validity of a warrantless arrest, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and in determining if the officers in the instant case could effect a lawful arrest without warrant, we look to the statutes of this State.

Chapter Fourteen, Vernon's Ann.C.C.P., provides the authority for most lawful warrantless arrests in Texas. ³ An arrest may be made with probable cause when the authorities, be it peace officers or magistrates, have reasonable belief that an offense is being committed in their presence. Articles 14.01, 14.02, V.A.C.C.P.; Daniels v. State, Tex.Cr.App., 476 S.W.2d 12. The record in the instant case reveals no evidence that the arresting officers believed appellant was committing an offense in their presence when they converged upon the Sherwood Forest Apartments. The sole reason for the arrest was their probable cause to believe that appellant hand already...