Oliver v. State

• Decision Date: 21 May 1987
• Docket Number: No. 2-85-193-CR,2-85-193-CR
• Citation: 731 S.W.2d 149
• Parties: Sammie OLIVER, Jr., Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 149

731 S.W.2d 149

Sammie OLIVER, Jr., Appellant, v. The STATE of Texas, State.

No. 2-85-193-CR.

Court of Appeals of Texas Fort Worth.

May 21, 1987.

Michael Logan Ware, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., and David L. Richards, Asst. Dist. Atty., Fort Worth, for appellee.

Before FENDER, C.J., and HILL and LATTIMORE, JJ.

OPINION

HILL, Justice.

Sammie Oliver, Jr. appeals his conviction by a jury for the offense of capital murder. See TEX.PENAL CODE ANN. sec. 19.03 (Vernon Supp.1987). Since the jury was deadlocked on the first special issue on punishment, the trial judge sentenced Oliver to life imprisonment as provided by TEX.CODE CRIM.PROC.ANN. art. 37.071(e) (Vernon Supp.1987). Oliver presents six points of error.

We affirm.

In points of error numbers one and two, Oliver urges that the trial court erred in failing to sustain his motion to suppress the written statement which he gave following his arrest without a warrant, which he claims to be a violation of his rights under the fourth and fourteenth amendments to the United States Constitution, as well as a violation of chapter 14 of the Texas Code of Criminal Procedure.

Oliver argues that he was arrested without a warrant and without probable cause. The test applicable in determining whether there is probable cause for an arrest without a warrant is whether facts and circumstances within the officer's knowledge and of which he had reasonable trustworthy information was sufficient to warrant a prudent man to believe that the arrested person had committed or was committing an offense. See Dotsey v. State, 630 S.W.2d 343, 347 (Tex.App.--Austin 1982, no pet.).

The facts are well set out in the trial court's findings of fact numbers 1 through 9:

FINDINGS OF FACT

1. The capital murder on which this prosecution is based occurred on December 11, 1982, during the course of an aggravated robbery at the Navajo Grocery in Lake Worth, Tarrant County, Texas. The crime was committed by two young black males wearing ski masks and brandishing a sawed-off shotgun. The two men were not immediately apprehended.

2. On December 17, 1982, an aggravated robbery occurred at a Stop 'N' Go store on Geddes Street in Fort Worth, Tarrant County, Texas. This crime was also committed by two black males wearing ski masks and brandishing a shotgun. The two men were not immediately apprehended.

3. On the morning of December 18, 1982, Fort Worth Police Officer Bobby Pate received a call from Dorothy Tucker, who had previously given him accurate information about criminal activity. Tucker told Pate she had been in a car with two black males the previous night when they stopped at the Stop 'N' Go on Geddes Street and committed a robbery. Tucker's description of the robbery matched what Pate knew to be the reported facts of the robbery.

4. Tucker told Pate that one of the robbers was Jimmy (Jamie) Davis; the other she knew only as Sammie. She also told Pate that Davis and Sammie had committed an earlier robbery in which someone was hit.

5. Later on December 18th, Tucker told Pate she could show him the automobile Jimmy Daivs [sic] had been driving when they committed the previous night's robbery. She led him to a brown El Camino with Ohio license tags, located on 19th Street in Fort Worth. The car was placed under surveillance, first by Pate, then by Fort Worth Police Officers J.J. Yale and J.D. Carraway.

6. Tucker then gave a sworn written statement naming Jimmy Davis and "Sammie" as the Stop 'N' Go robbers.

7. While Yale and Carraway watched the El Camino, they saw a black male walk up to the car, inspect it, then walk away. Caraway [sic] left the surveillance with Officer P.E. Fritz, who was in route to getting an arrest warrant signed for the arrest of Davis, now determined to [be] James Earl Davis. Yale stayed at the surveillance point until he was advised by radio that tactical squad officers, armed with the warrant, were on their way to the location. The warrant had been issued at aproximately [sic] 3:30 P.M. on December 18, 1982.

8. When the tactical squad officers arrived at the location, the El Camino was gone. However, one of the officers, John Lucas, saw the El Camino being driven nearby by a black male. Lucas had previously read the warrant for Davis, Tucker's sworn statement, and an offense report prepared [by] another police officer. He followed the El Camino until it stopped in front of a residence. He believed Davis was the driver, and he approached the driver to arrest him pursuant to the warrant. Some of his fellow officers also stopped and approached the El Camino.

9. Dorothy Tucker was a passenger in the El Camino. She told one of the officers that the driver of the El Camino was the "Sammie" she had told Pate was one of the two Stop 'N' Go robbers. This information was promptly relayed to Lucas, who arrested the man. Lucas asked him for identification and was given a pawn ticket with the defendant's name on it. Lucas then read the defendant his Miranda rights and took him to jail.

Based upon these facts, we find that there was probable cause for Oliver's arrest for the second Stop 'N' Go robbery.

Oliver's argument that the officers did not have probable cause is based on the opinion of Glass v. State, 681 S.W.2d 599 (Tex.Crim.App.1984). In Glass, an anonymous telephone caller told police that occupants of a brown-over-beige El Camino and a blue Fairlane were shooting at each other near an Austin intersection. When officers arrived at the intersection, nothing unusual was happening, but a few minutes later the officers stopped a brown-over-beige El Camino traveling near the intersection. The Court of Criminal Appeals held that there was no probable cause to arrest the occupants of the vehicle because an anonymous telephone call or letter, standing alone, will never provide sufficient facts that would authorize a warrantless arrest or search which is, per se, unreasonable. The Court held that an investigative stop was not authorized either, because without a showing of time proximity between the anonymous report and the stop, there was no reasonable basis for a conclusion that the vehicle stopped was one of the vehicles involved in the shooting. In the case at bar, the individual who provided the information was a known individual, present at the scene of the arrest, who had, to the knowledge of the arresting officer, given detailed information previously about the offense in question. See West v. State, 720 S.W.2d 511, 512-13 (Tex.Crim.App.1986).

Oliver also asserts that the facts do not justify an arrest without warrant under any of the provisions of chapter fourteen of the Texas Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. art. 14.04 (Vernon 1977) provides that:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

As we have noted, Dorothy Tucker had previously given accurate information and her information about this crime corresponded with the known facts of the offense. We therefore conclude that she is a credible person within the meaning of article 14.04.

Although there was time to procure a warrant for "Sammie," it was not reasonable to do so because the police did not know who the "Sammie" was that they were looking for until Dorothy Tucker identified Oliver as the "Sammie" who was involved in the offense. At that time there was no time to procure a warrant.

In considering the question of whether Oliver was about to escape, within the meaning of article 14.04, we will consider whether the information available to the arresting officers would justify the belief that Oliver would take flight if not placed in custody, and whether the conduct of the officers themselves unnecessarily created the likelihood of such an action. See West, 720 S.W.2d at 517. Under the facts as we outlined above, Oliver would have known that the police were looking for his companion, James Earl Davis. He could have surmised that the investigation would soon center on him if the police talked to Davis. He was on a public street with access to the automobile he was driving. We hold that the facts show satisfactory proof that Oliver was about to escape, and that his warrantless arrest was justified by article 14.04 of the Code of Criminal Procedure. See Carter v. State, 713 S.W.2d 442 (Tex.App.--Fort Worth 1986, pet. pending). The record does not reflect any conduct of the officers which would have unnecessarily created the likelihood of Oliver's escape.

Oliver relies on the opinion of the Texas Court of Criminal Appeals in the cases of Bell v. State, 707 S.W.2d 52 (Tex.Crim.App.1986) and Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986). In Bell, the defendant had been warned that the police were looking for him but remained in a bar in the same vicinity where he had been warned. In the case at bar, the defendant had just learned that his robbery companion was sought by the police, and he had his automobile available to him. We further note that the opinion in Bell has been withdrawn pending rehearing. In Self, the suspect was arrested without a warrant while walking down the street near his residence. Evidence showed that his residence was under surveillance for one and one-half hours before his arrest, that officers knew his full name, that a magistrate was available for issuing a warrant, but the officer in charge did not think about securing one. In the case at bar, the officers did not previously obtain a warrant because they only knew the defendant's first name. Once they learned his last name, there was no time to secure a warrant. We overrule points of error numbers one and two.

In point of error number three, Oliver argues that the trial court erred in denying his motion...