Paprskar v. State

Decision Date07 June 1972
Docket NumberNo. 44447,44447
Citation484 S.W.2d 731
PartiesMichael PAPRSKAR, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Aultman & Riley by Randell C. Riley, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., John Brady and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction as a principal to the offense of murder where the jury assessed the death penalty.

At the outset we are confronted with the most serious question in the case. The appellant complains of the admission into evidence of certain items seized as a result of a warrantless search of his residence and place of business after his expressed refusal to consent. Appellant contends his rights under the Fourth and Fourteenth Amendments to the United States Constitution and the provisions of Article I, § 9, Texas Constitution, Vernon's Ann.St. were violated. See also Article 38.23, Vernon's Ann.C.C.P.

The State relies primarily upon the written consent to search executed by appellant's wife. Appellant urges that such consent, given out of his presence, was not valid, and further that such consent was the result of coercion and duress.

The indictment charged the appellant with the murder of Daniel Ramirez, Jr., on January 20, 1970, 'by shooting him with a gun.' The evidence showed the victim was four years old.

On the night of January 20, 1970, Fort Worth police officers investigating a car left parked on the parking lot of a shopping center discovered the body of the alleged victim in the vehicle. There were no keys in the car but a set of jumper wires was found under the hood. Noting a pool of blood near the trunk, assistance was summoned, the trunk forced, and the bodies of Daniel Ramirez, Sr., and his brother, Sammy Ramirez, were discovered therein. All three victims were shown to have died as a result of multiple gunshot wounds.

As a result of information received from Bobby Carpenter approximately 40 armed officers assembled at the Police Training Academy in Fort Worth early on the morning of January 29, 1970. Assistant District Attorney John Brady was present.

A Justice of the Peace was summoned. He issued felony arrest warrants for the appellant, appellant's wife, Harrell and Danny Anderson, and a white male named 'limpy', later shown by the evidence to be Eddie Miller. The Justice of the Peace was not asked to issue any search warrants, but was asked to stand by since he had a police radio in his car. Separate written consent to search forms were prepared for the appellant and his wife by Prosecutor Brady. Different officers were given these forms and assigned the task of obtaining such consent from either the husband or wife.

At approximately 7 a.m. just 'at the break of day' appellant's residence and motorcycle shop at 2010 Belle Street in Fort Worth was completely surrounded by the officers. Officer J. C. Williams then went to a nearby phone booth and called the appellant telling him the place was surrounded and to come out with his hands up.

The appellant, age 28, came out with his hands up. He was followed by another individual. Two others came out shortly thereafter. The record does not identify them. Appellant's wife was arrested inside the house. It was shown that appellant, his wife, the two Anderson brothers, John Lightsey and his girl friend were taken into custody. 'Lumpy' Miller was later arrested at another time and place the same day.

After all the occupants were removed from the building, except appellant's wife, she was shown to have signed a written consent to search. Thereafter, apparently pursuant to such consent, officers, from approximately 7:30 to 11 a.m. conducted a thorough search of the premises. The acid vat in the motorcycle shop was emptied. In the slush at the bottom was found a key ring and several keys, a padlock and three links of chain and 'a couple of pieces of metal that appeared to have been cut up with a cutting torch.'

.22 and .25 caliber ammunition was found in the living room and in a dresser. A fully loaded .22 caliber revolver behind a stereo console above the bed and a magazine to a .22 caliber weapon were also discovered. Two sets of jumper wires were located in the cycle shop.

Chemist Tullis was called and reported to the search scene. He removed a ceiling tile and found human blood thereon. He also made an examination of the floor in several places using chemicals which react to human blood. He got a positive reaction at several locations.

Officer Stewart related that prior to the search, the primary goal of the officers was to arrest the persons named in the arrest warrants and secure any weapons they might have and that their secondary goal was to find a padlock and chain which had been taken from the hood of the car in which the bodies were found and a set of keys.

One of the keys found was shown to fit and unlock a door to deceased Sammy Ramirez's home and another key fit the ignition of the car in question which was registered in the maiden name of said Sammy Ramirez's wife. The car key had been damaged by the acid and it was not used to start the automobile but it caused the buzzer to sound when the front door was left open. The chain links discovered matched those found on the car, and it was shown that Sammy Ramirez kept the hood of his car padlocked with lock and chain to prevent it from being stolen.

Some of the cut pieces of metal found in the vat were shown by the chemist's testimony to have come from a .22 caliber weapon.

The items seized in the search were used to support the State's theory of the case. Other State's evidence showed that on the morning of January 20, 1970, Daniel Ramirez, Sr., had gone to appellant's home and cycle shop and sold him heroin in exchange for a $60.00 check and a .25 caliber pistol. The check was immediately cashed at Leonard's Department Store. The appellant got sick from the heroin and decided Ramirez had sold him 'bad heroin' either diluted or cut with a substance that caused the sickness. He determined to kill Ramirez. Later in the afternoon, Ramirez and his brother, Sammy, appeared at appellant's place and requested he show them how the .25 caliber pistol operated. With such weapon, appellant shot Daniel Ramirez, Sr. and at the same time, Danny Anderson shot Sammy Ramirez with a .22 caliber weapon. While making plans to dispose of the bodies, Harrell Anderson discovered four-year old Daniel Ramirez, Jr. in the Chevrolet automobile in which the Ramirez men had arrived. It was then decided to kill the boy and Harrell Anderson shot him. The car was then driven to the parking lot where it was found.

At the hearing on the motion to suppress, appellant testified that after he received the call from Officer Williams he observed the place was surrounded by police, and he dressed, and came out with his hands up. He related he was grabbed and thrown against a car, that an officer handed him a pen and demanded he sign a consent to search, but that he refused requesting a lawyer. At this point, he claimed an officer stuck a shotgun in his face and told him if he did not sign his head would be blown off. When he again refused, he was handcuffed, forced to lie on the ground with his coat over his head and told not to breathe. Approximately 15 minutes later, he was taken downtown.

In some respects, Detective Steele corroborated appellant's testimony. He stated he handed the consent form and a pen to the appellant and the appellant refused to consent and inquired '. . . what he was being charged with.' and 'I told him that we had a consent form for us to search that we were going to get a Search Warrant and search the house anyway.' 1 Steele revealed that the appellant responded with an obsence gesture. Steele guessed that he could have gotten a search warrant. He knew a Justice of the Peace was standing by. He acknowledged that neither he nor the other officers informed appellant of his rights. He knew that after appellant's arrest the appellant did not talk with his wife.

Steele related that he informed Prosecutor Brady of the appellant's refusal and stated, '. . . I think we was in the living room in the presence of Mrs. Paprskar when I told him.' Steele did not know whether she heard what was said, but he acknowledged that at the time, appellant was 'outside.' The record does not reflect whether the consent form had been signed at this time.

Bonnie Paprskar, age 26, who weighed 103 pounds, testified that her husband, the appellant, told her the police had called and they were 'to go out with our hands up.' She dressed and went to the bathroom to brush her teeth when an officer yelled, 'Here is another one,' and '. . . drug me out of the bathroom and slung me across the kitchen' (12 or 14 ft.). She stumbled but did not fall. Another officer then caught her arm, pulled her into the living room and pushed her into a chair. She testified there were 20 or more officers in the room, armed with pistols and shotguns, formed in a semi-circle around her. Some of the shotguns were pointed at her. She related that one officer handed her a 'search paper' and told her she had to sign it; that she asked to see her husband 'because I didn't know what to do about it.' The request was refused. She testified she '. . . begged them to let me talk to him' but each request was refused and '(t)hey wouldn't tell me why I couldn't see him'; that she 'was scared to death,' trembling, almost in tears.

Appellant's wife also related the officer who handed her the paper said that she had to sign or they were going to tear the place up, and then she added, 'They told me that I might as well sign the paper because the judge was just down the street and if I didn't sign the paper they were going to tear the place up anyway if they had to get the search paper from him.'

She further...

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