Morris v. State

• Decision Date: 28 October 1987
• Docket Number: No. 941-85,941-85
• Parties: Thomas MORRIS, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 63

739 S.W.2d 63

Thomas MORRIS, III, Appellant, v. The STATE of Texas, Appellee.

No. 941-85.

Court of Criminal Appeals of Texas En Banc.

Oct. 28, 1987.

Charles F. Baird (Court-appointed on appeal only), Michael B. Charlton, Cathy Greene Burnett, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Rusty Hardin and

Karen Zellars, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

A jury convicted the appellant of felony theft. V.T.C.A., Penal Code Sec. 31.03. Appellant then pled true to the enhancement paragraph in the indictment. The jury assessed the appellant's punishment at 20 years' confinement, and a fine of $740.00.

Before the Court of Appeals, the appellant argued that the warrantless and unlawful nature of his arrest for unauthorized use of a motor vehicle tainted the police's subsequent search of him, which rendered inadmissible the evidence seized by the police during his search. The Court of Appeals decided that it need not address the legality of the appellant's arrest for unauthorized use of a motor vehicle. The Court of Appeals found that, after being arrested and before being searched, the appellant committed the felony offense of escape ¹ by running from the police officer who arrested him. The Court of Appeals concluded that since the appellant's escape in the presence of the police officer provided probable cause for the second arrest, the evidence seized subsequent thereto was properly admitted. Morris v. State, 696 S.W.2d 616 (Tex.App.--14th Dist.1985).

The appellant sought review by this Court from the decision of the Court of Appeals. As his reason for review, the appellant claims that the holding of the Court of Appeals is in direct conflict with this Court's holding in White v. State, 601 S.W.2d 364 (Tex.Cr.App.1980), and the holding in Snabb v. State, 683 S.W.2d 850 (Tex.App. 13th Dist.1984). ² We granted review.

In the appellant's petition for discretionary review, he alleges as his ground for review that the Court of Appeals erred in concluding that the warrantless arrest was justified because the appellant committed the new offense of escape. The State responded by arguing that, under the facts of the instant case, there was a sufficient combination of the assertion of authority by the arresting officer and submission to that authority by the appellant to establish that appellant was arrested and in custody at the time of his escape.

A review of the facts is necessary.

Sergeant R.L. Reed of the Houston Police Department was investigating the alleged theft of a Chevrolet Camaro when he came into contact with the appellant. A confidential informant gave Reed the appellant's name, address and general description, and told Reed that the appellant stole the Camaro. While Reed had the Camaro under surveillance at appellant's apartment complex, a person entered the Camaro and drove off. Reed could not, at first, see who got in the car because his view was temporarily obstructed. Reed followed the Camaro and, at one point, observed the driver stop, get out of the car, and use a public telephone. Later, as Reed continued to follow the Camaro, the driver became suspicious and executed a U-turn across several lanes of traffic, in an attempt to evade Sergeant Reed. In Reed's words, "He ran from us in a high speed chase and then ran on foot from that vehicle, fled from that vehicle." The driver abandoned the car and successfully eluded the pursuit of the officers. By checking the Vehicle Identification Number of the car, Reed confirmed it was the stolen vehicle for which he was searching.

Later, Sergeant Reed contacted the confidential informant who gave him the information about the appellant's residence. The informant had found a business card left on the front door of the appellant's apartment. The informant told Reed that the card was from a district parole officer, Randy Frisch. Written on the card was a message to the appellant requesting that he come by the District Parole Office for a meeting at a specific time. Reed decided to be there as well, to see if the man who showed up for the meeting was the same man whom he saw drive the Camaro and make the phone call.

While Sergeant Reed was at the parole office, he met Randy Frisch, the appellant's parole officer. When Reed saw the appellant, he recognized him as the driver of the Camaro. At that point, Reed told appellant he was under arrest for unauthorized use of a motor vehicle. What occurred next was the subject of a pre-trial hearing, and is the focus for this dispute on appeal.

The appellant filed a pre-trial motion to suppress the evidence, alleging that Reed lacked probable cause to make the warrantless arrest. Frisch, Reed and appellant all testified at the hearing.

Frisch testified that when appellant came into the parole office, Sergeant Reed told appellant that he was under arrest for unauthorized use of a motor vehicle. He stated that Reed asked the appellant some questions, but did not handcuff the appellant. Frisch testified that the appellant asked him what would happen to his parole because of the arrest. Frisch replied that nothing would happen to appellant's parole if he wasn't convicted on the case Reed was investigating. Frisch stated that the next thing to happen was the appellant ran from the parole office. Frisch closed by explaining that there was no question in his mind that Reed placed the appellant under arrest prior to his running away from them.

Reed also testified at the hearing. Under questioning by the attorney for the State, the following occurred:

"Q. (Mr. Hardin): When Mr. Morris came in, did you recognize him?

"A. Yes, immediately when he walked through the door, I knew he was one and the same person that ran in that car on the 20th of July.

"Q. As a result, did you place him under arrest?

"A. Yes, sir, I did."

Reed also explained that, after he placed the appellant under arrest, he advised the appellant of his legal warning, "read his rights to him from the blue card", and called for a unit to transport the appellant. He testified that he did not handcuff the appellant because he did not have a pair of cuffs with him.

At that point, the appellant "jumped up and ran out of the office and through the parole office and out the front door," according to Sergeant Reed. After leaving the building, the appellant ran across two parking lots and into an open wooded field. The parking lots were filled with a couple of inches of water and the field was very muddy, due to recent rains. Reed stated that upon entering the field, the appellant "stopped to look back and see if I was coming. He saw me and bolted back into the woods." Reed was able to locate the appellant's hiding place in the field by following his tracks in the mud. At that point, Reed took the appellant back into custody.

The appellant was the last witness to testify at the pre-trial hearing. His defense attorney asked him, at one point, what happened after Officer Reed told him he was under arrest and was taking the appellant downtown for questioning. The appellant responded as follows:

"After that I sit down--they have a chair in Mr. Frisch's office. I sit on the chair. He kept on asking me questions. I didn't want to answer, keep telling him I want to see a lawyer. He kept talking about if I telling him about the cars he asking me about, it would be easier on me. I didn't say nothing. After that it dawned on me that I was going back to the penitentiary and I'll admit I did run."

This Court recently handed down Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986), and it controls the resolution of whether the appellant was arrested and in the custody of Sergeant Reed at the time he ran from the district parole office. V.T.C.A., Penal Code Sec. 38.07 sets out the felony offense of escape:

(a) A person commits an offense if he escapes from custody when he is:

(1) under arrest for, charged with, or convicted of an offense;

If the facts support the conclusion that the appellant was in custody when he was placed under arrest for unauthorized use of a motor vehicle, the Court of Appeals reached the proper conclusion. We agree with the Court of Appeals.

In Russell v. State, this Court had to resolve whether the defendant was placed under arrest prior to consenting to the search of her home. This Court relied on the analysis of the Supreme Court in U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, at 1877, 64 L.Ed.2d 497 (1980):

"We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

The Court gave several examples of circumstances that could indicate a person was in custody: an attempt by the person to leave, the threatening presence of several officers, the display of a weapon, a physical touching of the person, or the use of language or tone of voice indicating compliance by the person was compelled.

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, at 1326, 75 L.Ed.2d 229 (1983), the Court relied on Mendenhall to conclude that the circumstances indicated "a show of official authority such that a reasonable person would have believed that he was not free to leave." In Royer, the arresting officers asked for, and examined, the defendant's airline ticket and driver's license, they identified themselves as narcotics officers, they told the defendant they suspected him of transporting narcotics, and they requested the defendant accompany them to their office. The officers did all this while retaining the defendant's ticket and driver's license and without indicating in any way that he was free to depart. The Court decided the defendant, at that point, was in the custody of the two officers.

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