Miller v. State

• Decision Date: 27 May 1987
• Docket Number: Nos. 081-85,082-85 and 278-85,s. 081-85
• Parties: Wilfred Joseph MILLER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 643

736 S.W.2d 643

Wilfred Joseph MILLER, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 081-85, 082-85 and 278-85.

Court of Criminal Appeals of Texas En Banc.

May 27, 1987.

Joseph A. Connors, III, McAllen, for appellant.

Rene Guerra, Dist. Atty., Theodore C. Hake, Asst. Dist. Atty., Edinburg, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

DUNCAN, Judge.

Factually, the appellant and Patricia Winkler enjoyed a relatively unbridled robbery adventure beginning the evening of March 25, 1982 when the appellant entered the Edinburg H.E.B. supermarket, pointed a firearm at two of the store's employees, took some money, and escaped in Winkler's automobile. Their last robbery occurred on July 4, 1982, when the appellant entered the Weslaco H.E.B. supermarket, after it had closed, and with his firearm aimed at one of the store's employees, took some money and again escaped in Winkler's car.

Between the H.E.B. supermarket robberies the appellant and Winkler were still active: they committed another robbery in an H.E.B. supermarket in Mercedes on April 20, 1982. This time the appellant apparently escaped on foot.

All three robberies remained unsolved until sometime in August, 1982, when Patricia Winkler told the police that appellant had committed the robberies.

On August 27, 1982, Edinburg police officer Ventura Cerda obtained an arrest warrant and along with several other officers arrested the appellant later that day.

The appellant was indicted under trial court Cause No. CR-845-82-E in two counts for two distinct aggravated robberies. The first count asserted the date of the offense as April 20, 1982; the second count claimed the date of July 4, 1982.

The appellant was also indicted under trial court Cause No. CR-850-82-E for the other aggravated robbery that was to have occurred on March 25, 1982. ¹

The appellant was tried in what we will hereafter refer to as the first trial on Count One of the first indictment, or trial court No. CR-845-82-E. He was found guilty and assessed 20 years in the penitentiary and a $5,000.00 fine.

Later, the second count of the first indictment and the second indictment, trial court No. CR-850-82-E, at the appellant's insistence, were consolidated and tried jointly before the same jury. The appellant was convicted of both robberies. On the robbery pled as Count Two in Cause No. CR-845-82-E the appellant was assessed 30 years. In the robbery identified in Cause No. CR-850-82-E the defendant was assessed 15 years.

All three convictions were appealed to the Thirteenth Court of Appeals. In three separate opinions the Court of Appeals affirmed the appellant's convictions. The Court of Appeals' first opinion dealt with the conviction the State achieved in prosecuting only Count One in the indictment numbered CR-845-82-E. This opinion was published. See: Miller v. State, 687 S.W.2d 33 (Tex.App.--Corpus Christi 1985).

The second opinion from the Court of Appeals was concerned with the conviction of the second count in trial court Cause No. CR-845-82-E. This opinion was unpublished. See: Miller v. State, No. 13-83-00281-CR (Tex.App.--Corpus Christi, October 25, 1984).

The Court of Appeals' third opinion obviously concerned the appellant's conviction in trial court Cause No. CR-850-82-E. This opinion also was not published. See: Miller v. State, No. 13-83-00282-CR (Tex.App.--Corpus Christi, October 25, 1984).

Prior to the first trial on December 14, 1982, the appellant filed a motion to suppress evidence under Cause No. CR-845-82-E. The same motion to suppress was simultaneously filed in Cause No. CR-850-82-E.

On January 20, 1983, a pretrial hearing was held by Honorable Arturo E. Guerra, Jr., Judge of the 275th District Court, who stated:

THE COURT: All right. Be seated. Good Morning. I call for Pre-Trial Cause Numbers CR 845, 850, and 855-82-E [another case that is not before this Court], the State of Texas versus Wilfred Joseph Miller, Jr. What says the State?

Responding to the court's question, both the State and the appellant announced ready for the pretrial hearing. Appellant's counsel then informed the court that a number of identical motions including the motion to suppress had been filed in each case. The court then asked defense counsel: "Do you have any objections to hearing each of the motions as they pertain to each three cases, since they pertain to the same ..." Defense counsel concurred with the court that "the evidence was the same for each."

The court then proceeded to hear the motions to suppress evidence as they related to both robbery indictments: CR-845-82-E and CR-850-82-E. Following the hearing Judge Guerra denied the motions to suppress.

The appellant's first trial, which was the prosecution of only Count One of Cause No. CR-845-82-E, began on January 25, 1983. And, as previously noted, the appellant was convicted and assessed 20 years in prison and a $5,000.00 fine.

On June 6, 1983, the appellant returned to court and appearing before the Honorable Fred Hooey moved the court to consolidate Count Two of Cause No. CR-845-82-E with Cause No. CR-850-82-D. The court granted the appellant's motion. Prior to the trial, however, appellant's counsel brought to the court's attention a number of pretrial motions, including the previously filed motion to suppress. During this proceeding the following exchange between appellant's counsel and the court occurred:

MR. CONNORS: Thank you, Your Honor. Your Honor, the next motion is a motion to suppress any evidence illegally received and as I understand it, a similar motion [actually the same] was before Judge Arturo Guerra when he presided on these three or four cases combined and he ruled on that area.

THE COURT: Very well. That motion is overruled and you may except to that ruling and I will be glad to let you make a bill.

Thus, it is obvious that the appellant conceded that the motion to suppress evidence had already been considered and denied by Judge Guerra. It is equally as obvious that Judge Hooey by summarily overruling the motion to suppress merely recognized that Judge Guerra had already held a hearing on the motion to suppress and had denied it.

On direct appeal, appellant, as a part of a number of alleged errors, claimed that one or both of the trial judges erred in denying the motions to suppress all evidence obtained as a fruit of appellant's arrest because the arrest warrant was not based on probable cause. In the published opinion the Court of Appeals rejected all of the appellant's claims and pertinently held that the first trial judge did not err in denying the first motion to suppress because the evidence was purged of the taint of any illegality, or was admissible in its own right. In the unpublished opinions, the Court of Appeals held that the judge in the second trial did not err in denying appellant's second motion to suppress because, in that Court's words, "The underlying factual validity of the affidavit was established by the record."

We granted the appellant's Petitions for Discretionary Review in all three cases to examine the issue of whether the Court of Appeals was correct in concluding that the trial court properly denied the appellant's motion to suppress evidence. On original submission we abandoned the "four corners" doctrine as it relates to the review of an arrest warrant for probable cause and concluded that the probable cause upon which an arrest warrant is issued need not be shown by the complaint alone. Accordingly, we held that the issuing magistrate may find probable cause by reference to more than one sworn document.

We granted the first ground of appellant's Motion for Leave to File Motion for Rehearing in all three cases to correct some factual inaccuracies in the original opinion and reconsider our desertion of the "four corners" doctrine.

After thoroughly reviewing the record it is apparent that the comments of this Court in its original opinion relative to the magistrate's consideration of the other affidavits was inappropriate and unnecessary to a disposition of the appellant's claims in any of the three cases. Therefore, we withdraw our original opinion and substitute the following opinion.

During the hearing held before Judge Guerra, Officer Cerda testified and identified himself as the police officer assigned to investigate an H.E.B. robbery in Edinburg, and as the officer who obtained an arrest warrant and arrested appellant for that robbery. Cerda testified that in the course of his investigation he obtained affidavits from Patricia Winkler, Bernice Jargue, Irma Castillo, and Jose Luis Cardenas, which inculpated the appellant in the robberies. Officer Cerda also testified that he obtained the arrest warrant from Justice of the Peace Ponciano Cantu. Cerda further stated that he presented to Judge Cantu his own sworn affidavit and "affidavit statements, the statement from Patricia Winkler, the copies, for example, the photos from the basketball team, and he reviewed all that--all this information--and he asked me several questions that I answered for him." However, what we overlooked in our original consideration of this case was that, with the exception of Officer Cerda's affidavit (complaint), none of this information was even offered, much less admitted, as evidence. As noted, the only affidavit in support of the arrest warrant that was admitted into evidence by Judge Guerra and thus which he could consider was the conclusory statement of Officer Cerda. It states as follows:

I, Ventura Cerda, do solemnly swear that I have good reason to believe, and do believe and charge, that heretofore, on, or about the 25th day of March, 1982, in the County of Hidalgo and State of Texas, Wilfred Miller, hereinafter called Defendant, did then and there while in the course of committing theft and with intent to appropriate property of Roberto Mora to wit: money, without...