Miller v. State, 13-83-062-CR

• Court: Texas Court of Appeals
• Writing for the Court: PER CURIAM; BENAVIDES
• Citation: Miller v. State, 687 S.W.2d 33 (Tex. App. 1985)
• Decision Date: 03 January 1985
• Docket Number: No. 13-83-062-CR,13-83-062-CR
• Parties: Wilfred Joseph MILLER, Jr., Appellant, v. STATE of Texas, Appellee.

Page 33

687 S.W.2d 33

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

No. 13-83-062-CR.

Court of Appeals of Texas Corpus Christi.

Jan. 3, 1985.

Rehearing Denied Jan. 31, 1985.

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

Robert J. Salinas, Edinburg, for appellee.

Before the court en banc.

OPINION

PER CURIAM.

In a jury trial appellant was convicted of aggravated robbery. Punishment, also determined by the jury, was assessed at twenty years' imprisonment and a $5,000.00 fine. The case before us bore cause number CR-845-82-E at the trial court level. The offense charged by the indictment under this cause number allegedly occurred on or about April 20, 1982. The complaint for the April 20th offense was signed on August 28, 1982, by Gilbert Garza, Justice of the Peace, and by Officer Alejandro Moreno, complainant. A warrant for appellant's arrest was issued on August 28, 1982, for the offense of "Aggravated Arm [sic] Robbery"; it also named Moreno as complainant and was signed by Gilbert Garza.

The record contains another complaint which is dated August 27, 1982. It was signed by Officer Ventura Cerda, complainant, and Ponciano Cantu, Justice of the Peace. This complaint charges appellant with committing a separate aggravated robbery on or about March 25, 1982. The arrest warrant accompanying this complaint was signed on August 27, 1982, by Cerda and Cantu. Appellant was taken into custody on August 27, 1982. The pretrial hearings on suppression of evidence and voluntariness of the confession, encompassed three cause numbers, including that of the action now before us; identical motions were filed in all three cases. There was no objection that any evidence adduced during the hearings was unrelated to any of the three cases.

In his first, thirty-second, thirty-third and thirty-fourth grounds of error, appellant contends that the complaint alleged by Officer Cerda was not sufficient to support a determination of whether "probable cause" existed for appellant's arrest; thus, the evidence obtained as a result of that arrest was inadmissible. Appellant reproduced the August 27th complaint in his brief, and alleges that he was arrested based only on that arrest warrant. Appellant ignores the August 28th arrest warrant, which was issued pursuant to the offense charged in this case, and which includes a notation that it was executed on August 30, 1982.

Appellant has made no attempt to show that the August 28th complaint and warrant arose as a result of the allegedly tainted August 27th arrest, and we refuse to speculate that that is so.

However, even if the issuance of the challenged warrant did lead to appellant's invalid arrest and detention, we hold, for the reasons stated in determining appellant's other grounds of error, infra, that the evidence adduced to convict appellant was either purged of its primary taint or admissible in its own right. Appellant's first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred by refusing, at the conclusion of the hearing on the motion to suppress, to allow appellant to introduce into evidence the arrest warrant and supporting affidavit concerning the March offense. The request came after both the State and appellant had presented closing argument; appellant's motion to re-open the hearing in order to offer the evidence was denied. In his third and fourth grounds of error, appellant contends that all the inculpatory evidence obtained as a result of his arrest should have been suppressed because the State failed to present either the arrest warrant or the supporting affidavit for the March offense to the trial court at the hearing on the motion to suppress.

We note first that these documents pertain to the March offense. Also, the record reflects that defense counsel was provided with copies of both the requested arrest warrant and the underlying affidavits. Counsel thoroughly cross-examined Officer Cerda with the affidavit to which he swore before Judge Cantu. At the close of the hearing, counsel sought only to have the arrest warrant and the complaint introduced into evidence. There was no objection that the documents were not expressly presented to, or considered by, the trial court, and the record will not support such a determination as a matter of law. Finally, we note that appellant did not connect the challenged documents with the warrant and affidavit issued for the alleged April offense.

Immediately after denying appellant's request to reopen the hearing on the motion to suppress in order to introduce the arrest warrant and the underlying complaint, the trial court proceeded to hear the motion on the voluntariness of appellant's confession. During this portion of the hearing, appellant was allowed to introduce both documents into evidence, and they are a part of the appellate record. We find no reversible error from the trial court's actions, and appellant's second, third, and fourth grounds of error are overruled.

In his fifth through tenth grounds of error appellant contends that the trial court erred by allowing the State to introduce "all evidence obtained as fruit of the illegal arrest." Inter alia, appellant complains of the admission of pistols and magazine clips obtained from him; of the handbag he allegedly used to carry clothing worn during the offense; and of food stamps and cash. Appellant argues that the evidence was illegally obtained pursuant to a search without a warrant, and that he could not "legally" have voluntarily consented to the entry into his residence because he was under illegal arrest at the time.

An exception to the rule requiring a warrant and probable cause for a search is that the search was conducted with the consent of the accused. However, the consent can only be effective if the State clearly proves that the consent was freely and voluntarily given. "Whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances." Fancher v. State, 659 S.W.2d 836 (Tex.Crim.App.1983).

This analysis presumes, however, that a search occurred at all. The .25 caliber automatic pistol and its magazine clip were "seized" after appellant pointed the weapon at the arresting officers, just before he was to be "strip-searched" at police headquarters. In addition, Officer Park testified that appellant requested that the police officers take him back to his apartment to recover some personal items; that no search of the apartment was performed; that appellant gave the officers his consent to enter his apartment; and that appellant "hand[ed] over" the .22 caliber revolver. Officer Cerda iterated that appellant's apartment was not searched, and stated that appellant identified the .22 caliber pistol as being the one used in "the Mercedes robbery." Officer Cerda further testified that after leaving appellant's residence, appellant himself requested them to return because "[h]e wanted to give us some other property [including] a handbag which ... he said he used to carry the clothing that he used in the Mercedes robbery."

We hold that the record shows that appellant voluntarily produced the items whose admission into evidence is now challenged, and appellant's fifth through tenth grounds of error are overruled.

In his eleventh ground of error appellant contends that the trial court erred by finding that his confession was given voluntarily because the evidence showed that he was taken before a magistrate only after an unreasonable delay. Similarly, in grounds of error twelve and thirteen appellant contends that the confession, introduced into evidence as State's Exhibit Number Nine, should have been suppressed as "a fruit of [his] illegal arrest."

Out of the presence of the jury, the prosecutor stated that State's Exhibit Nine "is a true and correct copy [of appellant's confession], except that we have excised portions ... that relate to extraneous offenses." Appellant's counsel stipulated that the excised portions of the confession deleted any reference to extraneous offenses to the satisfaction of the defense, and renewed his pre-trial objections.

State's Exhibit Nine contained numerous deletions. Appellant first admitted plotting to rob an HEB store at an unspecified time in March of 1982; however, the confession did not state the date on which the actual offense occurred. The confession was signed on August 27, 1982, the day before the arrest warrant in the cause before us was even issued. It is thus not entirely clear that State's Exhibit Nine applies to the appeal now before us. At the hearing on the voluntariness of the confession, Officer Cerda testified that after appellant was arrested he was repeatedly read his rights, never requested an attorney or asked to terminate the hearing, and eventually admitted his guilt and sought to cooperate with the police. Appellant led the police to inculpatory evidence and demonstrated how one robbery was effected.

The penultimate typed paragraph of the confession states that:

"I also want to say that I cooperated with the police and took them to my house and willingly gave them the gun, money, and took them to the place where I burned the junk which I did not have use for from [deletion] robbery. I fully cooperated with the police and worked with them."

Appellant was arrested about 11:00 a.m. on August 27, 1981; he began leading police officers to evidence of the crime about 1:00 p.m.; and he was returned to the police station and had signed the confession by about 4:00 p.m. We hold that the trial court did not err in finding that the confession was voluntarily given. Any taint arising from the original arrest was thus removed. Gant v. State, 649 S.W.2d 30 (Tex.Crim.App.1983).

Thus, even if the arrest and detention were improper, we find no causal connection between the delay and the making of the confession. DeBolt v. State, 604 S.W.2d 164 (Tex.Crim.App.1980); ...