Self v. State

• Decision Date: 21 May 1986
• Docket Number: No. 1107-84,1107-84
• Citation: 709 S.W.2d 662
• Parties: Joseph N. SELF, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 662

709 S.W.2d 662

Joseph N. SELF, Appellant, v. The STATE of Texas, Appellee.

No. 1107-84.

Court of Criminal Appeals of Texas,

En Banc.

May 21, 1986.

David R. Weiner (court appointed on appeal only), San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. and C.N. Rothe, Bruce Baxter and Edward F. Shaughnessy, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of murder, and the jury assessed punishment at 99 years' imprisonment.

On appeal the San Antonio Court of appeals interpreted appellant's sole ground of error as alleging that appellant's written confession was inadmissible due to his illegal warrantless arrest. That court overruled this contention and affirmed the judgment. Self v. State, 677 S.W.2d 781 (Tex.App.-San Antonio 1984). Appellant's petition for discretionary review was granted to determine the correctness of that decision.

Appellant was charged with the capital murder of Sai Shun Wong by shooting him with a gun in the course of a robbery. See V.T.C.A., Penal Code, § 19.03. The State abandoned the capital feature of the indictment and appellant entered a plea of not guilty to the lesser included offense of murder. The jury convicted appellant as a party to the offense of murder.

The record shows that on the afternoon of August 6, 1982, two men entered the Chung Sun Grocery Market at 1230 East Durango Street in San Antonio. In the events that followed, Johnny Wong, age 54, owner of the store, was shot in the head with a small caliber weapon by one of the men. He was left dazed and dizzy. His father, Sai Shun Wong, age 77, was shot and killed by the other man. Mae Sam, Johnny Wong's niece, left the store during the incident. After the shooting both men fled from the store. Apparently no money was taken. Witnesses saw the two men leave the store and join a third man in an automobile parked nearby. As a result of obtaining the number on the dealer's plates on the vehicle and other information the police were led to the co-defendant, James Williams. Williams gave a confession, identifying the other man who entered the store with him as "Joseph." He pointed out the house on Potomac ¹ Street where "Joseph" lived or frequented, and gave a physical description of "Joseph" to the officers. It appears that during the investigation the police learned appellant's surname. Continuing the investigation, San Antonio police detectives Lauderdale and Morris ² proceeded on August 7, 1982, to the 900 block of Potomac and set up a surveillance four doors away from the address given them. Approximately an hour and a half later the detectives spotted a man walking west on Potomac fitting the physical description given and wearing tennis shoes that they had been told the suspect would be wearing. When asked, the man identified himself as Joseph Self. The officers then read to the appellant his Miranda rights. ³ Appellant was handcuffed and taken to the homicide office. Lauderdale and Morris returned to their regular assignments. See footnote # 2. At the police station, after being given the Miranda warnings twice by Detective Edward Pinchback appellant gave a written confession that he and Williams had entered the Chung Sun grocery the day before and that he had shot the man who came from the meat counter (later shown to be Johnny Wong) and then Williams shot the other man (later shown to be the deceased).

After indictment the appellant filed a pre-trial motion to suppress the confession. The trial court, in response thereto, conducted a pre-trial Jackson v. Denno ⁴ or Article 38.22, V.A.C.C.P., hearing to determine the voluntariness and admissibility of the statement.

Detectives Lauderdale and Morris testified to their arrest of appellant and the giving of the Miranda warnings. Such testimony showed a warrantless arrest. Detective Pinchback testified that he again at the police station read appellant his Miranda rights at 2:55 p.m. on August 7th and that he orally interviewed appellant for about 20 minutes. At first appellant denied the offense, but after two or three minutes he then stated to Pinchback, "Let me stop bullshitting and tell the truth." Appellant then revealed his part in the offense. Pinchback then gave appellant his Miranda warnings again before taking a written statement about 3:05 or 3:30 p.m. Pinchback testified that appellant gave the statement freely and voluntarily, that he understood his rights and did not invoke them. He denied that he physically or verbally abused appellant or made any promises or offers of leniency; that appellant read the written statement which included the Miranda warnings, and noted one mistake and corrected it, and agreed to another correction called to his attention by Pinchback. The confession was signed in the presence of two witnesses. The written statement was taken a little over two hours after appellant's warrantless arrest.

The 24-year-old appellant, who had finished high school, testified about his arrest. While walking on Potomac Street he was stopped and asked his name and for identification and then handcuffed. He stated he was surprised and scared at "that time." He denied to the officers he was involved in a robbery in which someone was killed. He said the officers said if he helped them, they would help him. He was turned over to Detective Pinchback at the police station. Appellant testified he was in a new situation, was scared and nervous, that he was told the officers knew what he was wearing at the time of the offense, etc. At one point during the hearing he told his counsel he knew he had a choice about making a statement, and at another point he related he didn't have a choice as the officers appeared angry and he had heard about defendants getting beaten. He did not testify that he was threatened or beaten, or that he did not understand his rights, or that he invoked his rights and that they were violated. He did recall Lauderdale and Morris had offered to help if he cooperated, though there was no showing of any effort by the arresting officers to take a statement. These officers were recalled and rebutted appellant's testimony about offers of help. Pinchback rebutted other portions of appellant's testimony.

At the conclusion of the hearing the court found that the written confession was voluntary and admissible into evidence. Among its findings the court found that appellant was arrested without a warrant, that the arrest was not justified by Chapter 14 of the Texas Code of Criminal Procedure, that probable cause, however, existed for his arrest, that the appellant was given and understood his rights under Miranda and Article 38.22, § 2(a), V.A.C.C.P., that he did not request the assistance of a lawyer, was promised nothing as inducement to give the statement, nor threatened or forced to give or sign the statement, and that the police conduct was neither purposeful nor flagrant.

Thus the trial court found that appellant was warned of his constitutional rights and concluded that the appellant thereafter gave the incriminating statement voluntarily. Because the trial court is the sole trier of facts at the hearing to determine the voluntariness and admissibility, this Court is not at liberty to disturb any finding which is supported by the record. McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976); Green v. State, 615 S.W.2d 700, 707 (Tex.Cr.App.1981); Coleman v. State, 643 S.W.2d 947, 948 (Tex.Cr.App.1983). We accordingly defer to those determinations.

Appellant nevertheless argues that his warrantless arrest was illegal and that the confession, being the fruit of the illegal arrest, should have been excluded at trial.

It is undisputed that the arrest was without a warrant and the trial court so found. The trial court further found that the police did have probable cause for the arrest on Potomac Street, and in this the court is supported by the record. See Lewis v. State, 598 S.W.2d 280 (Tex.Cr.App.1980). There does not appear to be a federal constitutional violation under the circumstances here presented. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and cases there cited.

Appellant argues, however, that the warrantless arrest was illegal under Chapter 14 of the Texas Code of Criminal Procedure in that no exigent circumstances existed to relieve the officers of their statutory duty to obtain a warrant before arresting him, and the State failed in its burden to show the arrest was within an exception to the warrant requirement. See Honeycutt v. State, 499 S.W.2d 662 (Tex.Cr.App.1973); Wilson v. State, 621 S.W.2d 799 (Tex.Cr.App.1981).

Articles 14.01 through Article 14.04, V.A.C.C.P., prescribed the only situations in which a peace officer may arrest without a warrant. The Court of Appeals agreed with appellant that the warrantless arrest was unlawful under Chapter 14 of the Texas Code of Criminal Procedure and particularly pointed out that the requirements of Article 14.04, V.A.C.C.P., were not met. ⁵ We are in accord with the Court of Appeals on this matter.

Article 38.23, V.A.C.C.P., provides in part that evidence obtained "in violation of any provision of the Constitution or law of the State of Texas" should be excluded. This is the Texas exclusionary rule.

What analysis are we to follow to determine whether appellant's confession was the fruit of his illegal warrantless arrest in violation of Chapter 14 of the Texas Code of Criminal Procedure? Since there were no federal constitutional violations here involved, we are not bound to follow the analysis in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). See Duncan v. State, 639 S.W.2d 314, 318 (Tex.Cr.App.1982). Only recently, however, in Bell v. State, 707 S.W.2d 52 (Tex.Cr.App.1986), this Court adopted the Brown analysis or...